exv10w14



 






Exhibit
10.14




	 	***	 	INDICATES
THAT TEXT HAS BEEN OMITTED WHICH IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. THIS TEXT HAS BEEN FILED SEPARATELY WITH THE SEC.







OEM PURCHASE AGREEMENT

BY AND BETWEEN

BIVIO NETWORKS, INC.

AND

SOURCEFIRE, INC.




     THIS OEM PURCHASE AGREEMENT is entered into by and between Bivio Networks, Inc., a Delaware
corporation (“Supplier”), and Sourcefire, Inc., a Delaware corporation (together with its
Affiliates, “OEM”), as of this 10th day of February, 2005 (the “Effective Date”). The parties
hereby agree as follows:




	1.	 	SCOPE OF AGREEMENT






	 	1.1	 	General. This Agreement specifies the terms and conditions under which
Supplier will sell, license, and support, and OEM will purchase, the Subject Products.
	 
	 	1.2	 	Eligible Purchasers. This Agreement enables OEM to purchase Subject
Products from Supplier under the terms of this Agreement or any subsequent Product
Addendum; provided, however, that Sourcefire, Inc. shall be liable for its Affiliates’
compliance with the terms of this Agreement, including the payment of all amounts due
to Supplier hereunder. Unless a Product Addendum specifically refers to and amends a
term of this Agreement, the terms and conditions of this Agreement will control and
take precedence over any conflicting terms in such Product Addendum.
	 
	 	1.3	 	Term Of Agreement. This Agreement will commence as of the Effective
Date and continue in effect for a *** period (the “Initial Term”), unless terminated
earlier under the terms of this Agreement. The term of this Agreement shall be
automatically extended for successive *** renewal terms unless either party, in its
discretion, elects to terminate by giving notice in writing to the other party no less
than *** prior to the end of the Initial Term or the then current renewal term, in
which case the Agreement shall terminate at the end of the then-current term. As used
herein, “Term” shall mean the Initial Term and any applicable renewal term. References
in this Agreement to “termination” include expiration of the Initial Term (or any
renewal thereof), unless otherwise expressly stated.






	2.	 	DEFINITIONS
	 
	 	 	The following capitalized terms will have these meanings throughout this Agreement.






	 	2.1	 	“Affiliate” means an entity controlled by, controlling or under common
control with a party to this Agreement, through ownership or control of more than 50%
of the voting power of the shares or other means of ownership or control, provided that
such control continues to exist.
	 
	 	2.2	 	“Agreement” means this OEM Purchase Agreement, including all Exhibits
attached hereto and incorporated herein under Section 21.2 below.



 









 






	 	2.3	 	“Delivery” means EXW Supplier’s or Supplier’s contract manufacturer’s
location unless otherwise agreed by the parties in writing.
	 
	 	2.4	 	“Delivery Date” means the date specified in an Order for the receipt of
Subject Products at the destination identified in the Order.
	 
	 	2.5	 	“Documentation” means the user and technical manuals and other
documentation that is made available by Supplier in conjunction with the sale of
Subject Products.
	 
	 	2.6	 	“Forecast” means a written estimate of the Subject Product demand of
OEM over a *** period furnished to Supplier under Section 6.1 below.
	 
	 	2.7	 	“GA Date” means the date on which OEM will make the Subject Product
generally available to its customers.
	 
	 	2.8	 	“Intellectual Property Rights” means all rights in patents, copyrights,
moral rights, trade secrets, mask works, Marks and other similar rights recognized
under any US or foreign law.
	 
	 	2.9	 	“Joint Product” means the hardware appliance to be sold by OEM to its
customers that includes the Subject Product combined with the OEM Software.
	 
	 	2.10	 	“Lead Time” means the time between the date an Order is sent and the
earliest possible Delivery Date.
	 
	 	2.11	 	“Marks” means the trademarks, service marks, trademark and service mark
applications, trade dress, trade names, logos, insignia, symbols, designs or other
marks identifying a party or its products. “Licensed Marks” means those Marks
use of which is expressly licensed under this Agreement.
	 
	 	2.12	 	“Orders” means a written or electronic purchase order or release for
purchase of the Subject Products in accordance with Section 6.2 or the Initial Purchase
(as defined in Section 3.1).
	 
	 	2.13	 	“OEM Software” means the application software owned by or licensed to
OEM to be distributed in combination with Subject Product.
	 
	 	2.14	 	“Parts” means the replacement parts, components, consumables, or other
products that may be provided by Supplier to OEM.
	 
	 	2.15	 	“Product Addendum” means an addendum to this Agreement entered into
between Supplier and OEM naming additional Subject Products and product specific
requirements in addition to those requirements specified in this Agreement.




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	 	2.16	 	“SOW” means a statement of work executed by both OEM and Supplier
pursuant to which the parties agree to undertake development efforts. The parties may
enter into more than one SOW under this Agreement.
	 
	 	2.17	 	“Spares” shall have the meaning set forth in Exhibit A.
	 
	 	2.18	 	“Specifications” means the technical and functional requirements for
the Subject Products as specified or referenced in Exhibit A-1 or as agreed to
by the parties under a SOW (See Section 4).
	 
	 	2.19	 	“Subject Product” means the Supplier Hardware Platform incorporating
Supplier Software.
	 
	 	2.20	 	“Supplier Hardware Platform” means a Supplier-designed hardware
platform identified in Exhibit A.
	 
	 	2.21	 	“Supplier Software” means software in object code form owned by or
licensed to Supplier and identified for distribution with a Subject Product.
	 
	 	2.22	 	“Support” means ongoing maintenance and technical support for the
Subject Products provided by Supplier to OEM as more fully described in Exhibit
C.
	 
	 	2.23	 	A “Unit” of Subject Products shall have the meaning set forth in
Exhibit A.
	 
	 	2.24	 	“Versions” shall mean updated versions of the Subject Product which are
made commercially available without charge by Supplier to its customers that are
currently on maintenance and support. “Versions” do not include major enhancements,
significant new functionality or any separately priced modules or features, as
determined by Supplier.






	3.	 	INITIAL PURCHASE OF SUBJECT PRODUCT; PREPAID DISCOUNT






	 	3.1	 	Initial Purchase. Subject to the terms and conditions of this
Agreement, OEM agrees, beginning on GA Date and ending six (6) months thereafter, to
submit Orders to purchase, and Supplier agrees to sell to OEM, no less than *** worth
of Units (the “Initial Purchase”) of Subject Product at the prices specified in
Exhibit A.
	 
	 	3.2	 	One-Time Fee. OEM shall pay Supplier *** within thirty (30) days of the
Effective Date. In consideration for this payment, Supplier will: (1) provide OEM with
up to *** prior to the GA Date related to *** that are necessary for the GA Date to
occur, and (2) agree to the covenants set forth in Section 8.8 of this Agreement.






	4.	 	STATEMENTS OF WORK; HARDWARE AND SOFTWARE RELEASES.






	 	4.1	 	Development Under a Statement of Work




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	 	4.1.1	 	General. The parties agree to use commercially reasonable
efforts to undertake the technical integration and development efforts that are
necessary for the GA Date to occur on or before July 1, 2005. OEM and Supplier
may from time to time agree in writing to the terms of a SOW relating to the
Joint Product. Each SOW shall include, but not be limited
to: (a) a detailed description of the parties’ respective development
responsibilities; (b) an estimated performance schedule including
milestones, if applicable, and acceptance dates; (c) identification of OEM
and Supplier contacts; and (d) a reference to this Agreement. A SOW may only
be amended or modified by a written document signed by authorized
representatives of each party. Except to the extent expressly agreed
otherwise in writing, the terms of this Agreement shall apply with respect
to performance under each SOW. Each party shall diligently perform the tasks
assigned to it under each SOW by using all commercially reasonable efforts
to meet the milestone schedule and dates set forth in the SOW.
	 
	 	4.1.2	 	Compensation. Each SOW shall specify any agreed compensation
to be furnished in consideration for services rendered under such SOW, if any.
Except as otherwise expressly set forth in the SOW or in this Agreement, each
party shall be responsible to pay its own development costs and other costs and
expenses incurred by it under this Agreement and each SOW. All travel expenses
incurred by Supplier in relation to execution of SOW tasks will be billed by
Supplier to OEM.
	 
	 	4.1.3	 	Payment Schedule. Except as otherwise set forth in the SOW,
Supplier shall invoice OEM on a monthly basis for work done under a SOW at a
rate of ***. Any such invoiced amounts will be due thirty (30) days after the
date of the invoice.






	 	4.2	 	Coordination and Qualification of Software and Hardware Releases






	 	4.2.1	 	Supplier Software Releases. Supplier currently intends to make
new Versions of Supplier Software available as part of its normal release
cycle. Supplier will, in its sole discretion, collect, evaluate and prioritize
all external and internal requests for each release. OEM may request new
features, functionality, performance enhancements and hardware design changes
at any time before or during the requirements definition phase of each release.
Except to the extent agreed in any SOW, any OEM requests will be incorporated
at the sole discretion of Supplier.
	 
	 	4.2.2	 	Supplier Hardware Platform Releases. Supplier currently
intends to make new Versions of Supplier Hardware Platform available as part of
its normal platform release cycle. Supplier will, in its sole discretion,
collect, evaluate and prioritize all external and internal requests for each
release. OEM may request new features, functionality, performance enhancements
and hardware design changes at any time before or during the requirements
definition phase of each release. Except to the extent agreed




4









 






	 	 	 	in any SOW any
OEM requests will be incorporated at the sole discretion of Supplier.
	 
	 	4.2.3	 	Additional Version Bundling. OEM may from time to time
select the new Versions of Subject Product and Supplier Software for bundling
into a Joint Product for resale by OEM under this Agreement. OEM and Supplier
shall cooperate in developing a SOW for their performance of tasks
associated with such qualification and test.
	 
	 	4.2.4	 	Discontinuance of Versions or Models of Subject
Products. This section 4.2.4 shall be effective only after the occurrence
of the GA Date. If Supplier seeks to discontinue the supply of any version or
model of Subject Product (“Discontinued Subject Product”), Supplier will give
written notice to OEM no less than *** in advance of the last date of supply of
the Discontinued Subject Product. Supplier shall also provide notice of any
replacement Subject Product (“Replacement Subject Product”) that is materially
equivalent to or better performing than the Discontinued Subject Product. OEM
shall use commercially reasonable efforts to approve the Replacement Subject
Product and shall within *** of receipt of written discontinuance notice
confirm to Supplier in writing whether or not it approves of the Replacement
Subject Product. Failure by OEM to provide such approval within *** shall be
deemed as approval of the Replacement Subject Product. Supplier shall be
entitled to rely on such approval and any failure by Supplier to supply the
Discontinued Subject Product or versions of it after the earlier of (i) the
date of the approval by OEM of Replacement Subject Product and (ii) the ***
period following the notification of the discontinuance of the Discontinued
Subject Product, shall not constitute a breach of this Agreement, including
without limitation pursuant to Section 17. Additionally, OEM may, after
receiving notice of Discontinued Subject Product request the Supplier to enter
into a mutually agreed SOW for the purpose of developing a new Joint Product
utilizing the Replacement Subject Product. Supplier agrees to negotiate with
OEM in good faith to reach an acceptable SOW.
	 
	 	4.2.5	 	Certifications. Supplier agrees to have the Subject
Product certified in compliance with the safety standards under UL 60950, CSA
C22.2 No. 60950, EN/IEC60950 and electromagnetic compatibility under FCC Part
15 Class A Subpart B, EN 55024: 1998, EN 55022 (CISPS 22): 1998, and VCCI Class
A ITE. Any additional certifications requested by OEM and reasonably acceptable
to Supplier (including purchases of the Subject Product for certification
purposes) will be paid for by OEM. Supplier shall upon OEM’s request furnish
technical assistance and documentation regarding Subject Product and other
reasonable assistance for securing any other permits, certifications and
approvals from various government authorities to enable exportation and use of
Subject Product worldwide in compliance with local laws and regulations and
standard commercial practice for like product. Supplier shall also furnish
reasonable assistance 




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	 	 	 	to OEM in securing for OEM to the extent practicable the
benefit of such like permits, certifications and licenses as may be issued in
the name of Supplier as applied to product purchased by OEM hereunder.






	5.	 	INTELLECTUAL PROPERTY RIGHTS.






	 	5.1	 	General Rule & Ownership. Except as may be expressly set forth in this
Section 5 or under Section 13 (Marketing) no assignment, transfer or license of any
Intellectual Property Rights of either party shall arise, whether by implication or
otherwise, under this Agreement. Supplier acknowledges and agrees that OEM, and its
licensors are, and shall remain, the owners of all right, title and interest in and to
the OEM Software and all related documentation (including, without limitation, all
modifications, enhancements, new versions and updates thereto), and all Intellectual
Property Rights therein, and that Supplier shall not obtain or claim any ownership
interest in the OEM Software or related documentation, or any portion thereof, or any
Intellectual Property Rights therein.
	 
	 	 	 	OEM acknowledges and agrees that Supplier, and its licensors are, and shall remain,
the owners of all right, title and interest in and to the Intellectual Property
Rights that make up Supplier Hardware Platform and the Supplier Software and all
related documentation (including, without limitation, all modifications, new
versions, enhancements and updates thereto), and all Intellectual Property Rights
therein, and that OEM shall not obtain or claim any ownership interest in the
Supplier Hardware Platform’s underlying Intellectual Property Rights or the Supplier
Software or related documentation, or any portion thereof, or any Intellectual
Property Rights therein. Notwithstanding the foregoing, and subject to Supplier’s
ownership of the underlying Intellectual Property Rights in the Supplier Hardware
Platform and Supplier’s ownership rights in the Supplier Software that is combined
with the Supplier Hardware Platform, OEM shall purchase and obtain exclusive title
and ownership to each Supplier Hardware Platform purchased under this Agreement.
	 
	 	5.2	 	SOW Ownership Rights. Supplier shall retain ownership of any
inventions, works of authorship or other work product, including all Intellectual
Property Rights therein and thereto, made, created, or developed by the parties
pursuant to a SOW, provided that the parties may by mutual agreement set forth in a SOW
that OEM or both of the parties own a subset or all inventions or other work product
developed pursuant to a SOW; provided, however, that OEM shall own all Intellectual
Property Rights in any development, invention or software code that is created solely
by OEM.
	 
	 	5.3	 	Supplier Licenses. Subject to the terms and conditions of this
Agreement, Supplier hereby grants to OEM a limited, non-exclusive, non-transferable,
nonsublicensable (other than to Subdistributors in accordance with this Section 5.3 or
to OEM’s contract manufacturer), worldwide license to: (i) reproduce and use (and to
have reproduced and used solely by OEM’s contract manufacturer) the Supplier Software
solely for use in the development and support of the Joint 




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	 	 	 	Products; and (ii) use,
reproduce, distribute and support the Supplier Software in object code form as part of
the Joint Products, and to directly sell the Joint Products to third party end users.
OEM shall be entitled to distribute the Joint
Products through subdistributors and
other third party intermediaries (collectively “Subdistributors”); provided,
that OEM shall require that each Subdistributor
enter into a written agreement with OEM pursuant to which such Subdistributor will
be required to perform in a manner that is not inconsistent with the terms and
conditions of this Agreement and shall agree to require all end users to enter into
a software license agreement or otherwise become party to a software license
agreement in substantially the form attached hereto as Exhibit E. Any such
agreement with a Subdistributor shall also require that all Subdistributors cease
distribution of Joint Products upon termination of this Agreement or of OEM’s rights
hereunder. Promptly upon becoming aware that a Subdistributor is in breach of any
provision of its agreement with OEM that relates to the sale of Joint Products, OEM
shall provide notice to the Subdistributor of the occurrence of such breach and
allow the Subdistributor a reasonable period of time to cure such breach. If the
Subdistributor does not cure such breach within the required time period, OEM shall
terminate such agreement with the Subdistributor and the Subdistributor shall no
longer be permitted to sell the Joint Products. OEM shall require all end users to
use the Joint Product subject to a software license agreement in substantially the
form of which is attached hereto as Exhibit E.
	 
	 	5.4	 	OEM Licenses. Subject to the terms and conditions of this Agreement,
OEM hereby grants to Supplier a limited, non-exclusive, non-transferable,
nonsublicensable (other than to Supplier’s contract manufacturer), worldwide license to
(i) reproduce and use and compile (and to have reproduced, used and compiled) OEM
Software in object code form solely for use in the development and support of the Joint
Products.
	 
	 	5.5	 	Documentation Licenses. Subject to the terms and conditions of this
Agreement, Supplier hereby grants to OEM a non-exclusive, non-transferable, worldwide
license to reproduce and distribute the Documentation to end users of the Joint
Products, excluding those portions of the Documentation which are identified by
Supplier as being Supplier’s Confidential Information, solely in connection with the
marketing, distribution, testing, sale, support or use of the Joint Product pursuant to
the terms of this Agreement.
	 
	 	5.6	 	Representations and Warranties. Supplier and OEM each represent,
warrant and agree for the benefit of the other that they have not made and shall not
make any unauthorized disclosure to the other party of any third party confidential
information in the course of performing under this Agreement (including any SOW) and to
such party’s knowledge all deliverable documentation and software furnished or to be
furnished under this Agreement may be licensed and used as licensed hereunder without
infringement of any third party copyright.
	 
	 	5.7	 	Reserved Rights. No rights or licenses under Supplier’s or OEM’s
Intellectual Property Rights not expressly granted under this Agreement shall arise by




7









 






	 	 	 	implication, estoppel, waiver or otherwise. Without limiting the foregoing, and except
as provided pursuant to this Agreement, including Section 5.3 herein, and except as
provided pursuant to any SOW, Supplier shall have no right or license to incorporate
OEM Software in any Subject Product under this Agreement; and OEM shall have no right
or license to reproduce, modify, translate or create any derivative work of all or any
portion of the Subject Product or sell, rent, lease,
provide, distribute or otherwise transfer all or any portion of the Subject Product,
other than as part of the Joint Products pursuant to the terms of this Agreement
Sourcand each applicable SOW.
	 
	 	5.8	 	e Code Escrow.






	 	5.8.1	 	Establishment of Escrow. Within 30 days following the GA Date,
Supplier shall deposit with Data Securities International, Inc. (“Escrow
Agent”) the source code to the Supplier Software that is incorporated into
the Joint Products (“Escrow Materials”) pursuant to the terms of an
escrow agreement to be entered into among OEM, Supplier and the Escrow Agent.
Supplier shall update the Escrow Materials within thirty (30) days after each
major release of such Supplier Software; provided, however, upon the occurrence
of a Release Event, Supplier shall immediately update the Escrow Materials with
the most current version of such Supplier Software so that OEM receives,
subject to the terms of Section 5.8, the then-most current version of the
Escrow Materials. OEM shall bear the cost of establishing and maintaining the
escrow account.
	 
	 	5.8.2	 	Release of Escrow Materials. In the event that (i) Supplier
files for or becomes a party to any involuntary bankruptcy or receivership, and
such proceeding is not dismissed within sixty (60) calendar days after filing;
(ii) Supplier commences liquidation proceedings or generally ceases doing
business, or (iii) Supplier fails to substantially perform Support Services (as
described in Section 10 and Exhibit C) where such failure is uncured
within thirty (30) calendar days after OEM provides Supplier with written
notice of such failure, a “Release Event” shall be deemed to have
occurred.
	 
	 	5.8.3	 	Release Procedure. Upon the occurrence and continuation of a
Release Event, OEM will notify the Escrow Agent. The Escrow Materials will be
released for use by OEM, subject to the terms and conditions hereof, only after
notice of such Release Event from the Escrow Agent to Supplier and Supplier’s
failure to declare in writing to the Escrow Agent within ten (10) calendar days
that no Release Event has occurred. If Supplier makes such written declaration,
then the issue of whether a Release Event has occurred and is continuing shall
be submitted to arbitration in Santa Clara County, California, under the
Commercial Arbitration Rules of the American Arbitration Association by one (1)
arbitrator appointed in accordance with said rules. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The costs of the




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	 	 	 	arbitration, including administrative and
arbitrator’s fees, shall be shared equally by the parties. Each party shall
bear the costs of its own attorneys’ fees in connection with such arbitration.
	 
	 	5.8.4	 	License. Subject to the terms and conditions of this
Agreement, Supplier hereby grants OEM a nonexclusive, non-transferable right
and license to use, modify, and reproduce the Escrow Materials solely in
connection with
OEM’s maintenance and support of the Joint Products, which right and license
OEM may exercise at any time after the occurrence and during the
continuation of a Release Event. Upon the cessation of any Release Event,
all licenses granted pursuant to this Section 5.8.4 shall terminate, unless
and until triggered again pursuant to this Section 5.8, and OEM shall
promptly return all copies of the Escrow Materials, or any portion thereof,
to Supplier, at OEM’s sole expense.






	6.	 	ORDER AND SHIPMENT OF SUBJECT PRODUCTS






	 	6.1	 	Minimum Requirements and Forecasts. Except for the Initial Purchase
requirement set forth in Section 3.1, OEM shall have no obligation to order any
specified number of Subject Products or to otherwise sell any Joint Products or
guarantee any minimum amount of Orders. OEM agrees to provide Supplier with rolling
monthly quantity forecasts of Subject Product by part number for a minimum period of
*** from the date of the forecast report. Any quantities listed in any forecast are for
the parties planning purposes only and do not constitute a commitment by either OEM or
Supplier.
	 
	 	6.2	 	Orders. Each delivery of Subject Products will be initiated by an Order
issued to Supplier by OEM. Each Order will include: (i) Supplier Part Number (ii) Unit
quantity; (iii) Unit price; (iv) shipping destination; (v) requested Delivery Date; and
(vi) other instructions or requirements pertinent to the Order. Orders shall only be
for Subject Products. OEM shall be responsible for installing any OEM Software on each
Subject Product delivered, pursuant to the terms of this Agreement. An Order will be
deemed to have been placed as of the date of receipt of the Order by Supplier. Supplier
will accept or reject Orders, electronically or through facsimile, within five (5)
business days after receipt of such Order. Supplier will use commercially reasonable
efforts to accept Orders which conform with this Agreement.
	 
	 	6.3	 	No Additional Terms. The terms and conditions of this Agreement shall
exclusively govern the purchase and supply of products hereunder and shall override any
conflicting, amending and/or additional terms contained in any Order or other
purchasing document submitted by OEM.
	 
	 	6.4	 	Lead Times. The Lead Time for each Subject Product is set forth in
Exhibit B. Supplier shall use commercially reasonable efforts to minimize Lead
Times.
	 
	 	6.5	 	Order Cancellations and Postponement




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	 	6.5.1	 	OEM may cancel any Order in whole or in part by giving written
notice to Supplier on or before the date that is *** prior to the original
Delivery Date. OEM may also cancel up to *** of any Order with no charge,
obligation, or liability by giving written notice to Supplier before the date
that is *** days prior to the original Delivery Date. Within ***, orders are
binding and noncancelable.
	 
	 	6.5.2	 	If OEM cancels an Order prior to shipment but other than as
authorized under Section 6.5.1, then, in addition to any other rights and
remedies under law or equity, Supplier, at its discretion, can either (i)
invoice OEM for the full amount of the Order cancelled, or (ii) be reimbursed
by OEM for actual costs reasonably incurred by Supplier as a direct result of
such cancellation that are not recoverable by the shipment of the affected
Subject Products or their raw materials to other purchasers within a reasonable
period of time.
	 
	 	6.5.3	 	OEM may at any time prior to shipment postpone Delivery Date
of Units for up to *** from the original Delivery Date.






	 	6.6	 	Shipment Requirements. All Orders are required to be shipped complete.
Supplier will give OEM prompt notice if it knows that it cannot meet a Delivery Date or
that only a portion of the Subject Products will be available for shipment to meet a
Delivery Date. For partial shipments, Supplier will ship the available Subject Products
unless directed by OEM to reschedule shipment. If Supplier ships any Subject Product by
a method other than as specified in the corresponding Order, Supplier will pay any
resulting increase in the cost of freight. If OEM designates a drop shipment location
outside the country in which the Order is placed, OEM agrees to pay any additional
costs associated with the shipment.
	 
	 	6.7	 	Title and Risk of Loss. All shipments will be EXW Supplier’s or its
contract manufacturer’s facility. Risk of loss and damage shall be borne by OEM upon
delivery of the product to a common carrier at such facility.
	 
	 	6.8	 	Shipping Documentation. Each delivery of Subject Products to OEM will
include:






	 	6.8.1	 	A packing list that contains at least:






	 	a.	 	The Purchase Order number and the Subject
Product Supplier part number;
	 
	 	b.	 	The quantity of Subject Products shipped; and
	 
	 	c.	 	The date of shipment.






	 	6.8.2	 	For international shipments, a commercial invoice as required
by local customs authorities (otherwise, SLI or like shipping documentation)
that includes, without limitation, for each Subject Product line item, the
country of origin, HTS Code and ECCN Code.




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	 	6.9	 	Packaging. Supplier will preserve, package, handle, and pack all
Subject Products so as to protect the Subject Products from loss or damage, in
conformance with good commercial practice, the Specifications, and government
regulations.






	7.	 	PRICES AND PAYMENT TERMS






	 	7.1	 	Subject Product Prices. Supplier’s prices for the Subject Products
during the Initial Term of this Agreement are listed in Exhibit A, in U.S.
currency. Volume purchase discounts as set forth in Exhibit A-2 will apply
during the Term of this Agreement. The prices for Parts will be Supplier’s published
prices, unless the parties agree to a price schedule for Parts. Prices for Replacement
Subject Products, other products purchased pursuant to a SOW or for Subject Products
purchased during any renewal term shall be agreed to in writing by Supplier and OEM.
	 
	 	7.2	 	Changed Prices. If during the Term changed prices or price formulas are
put in effect by mutual agreement of OEM and Supplier, or reduced prices or price
formulas are otherwise put in effect by Supplier under this Agreement, such prices or
price formulas (if resulting in lower prices than the then-current price) will apply to
all Orders issued by OEM for Delivery after the effective date of the changes to such
prices or price formulas.
	 
	 	7.3	 	Payment Procedure. Except as otherwise provided in this Agreement,
payment terms shall be net due thirty (30) days after the Delivery Date or date of
invoice, whichever is later. Except as otherwise provided in this Agreement, associated
freight expenses, insurance and duties from Supplier’s or Supplier’s contract
manufacturer’s facility will be paid by OEM and are not incorporated in the Price. All
payments due hereunder to Supplier shall be paid to Supplier in United States dollars
in the United States.
	 
	 	7.4	 	Sales Taxes and Duties. Prices are exclusive of all sales taxes or
duties arising from the shipment of the Subject Products to OEM that Supplier may be
required to collect or pay upon shipment of the Subject Products. Any such taxes or
duties will appear as a separate item on Supplier’s invoice for the Subject Products.
OEM agrees to pay such taxes or duties (other than taxes based on Supplier’s income and
profits or any other corporate or franchise taxes) unless OEM is exempt from such taxes
or duties and provides Supplier with an appropriate exemption resale certificate.
	 
	 	7.5	 	***






	8.	 	WARRANTIES






	 	8.1	 	Product Warranties. Supplier warrants for the period specified in
Section 8.3 that Subject Products will:




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	 	a.	 	Be manufactured, processed, and assembled in compliance with
all United States federal, state, and local laws, rules, and regulations
applicable to its performance of the Subject Products.
	 
	 	b.	 	Conform in all material respects to the Specifications and have
all requisite certifications and approvals as listed in Section 4.2.5.
	 
	 	c.	 	Be new, except as otherwise provided in this Agreement or
agreed to by the parties.
	 
	 	d.	 	Be free from material defects in materials and workmanship.
	 
	 	e.	 	Be free and clear of all liens, encumbrances, restrictions, and
other claims against title or ownership at the time of delivery.






	OEM shall be solely responsible for the selection, use, efficiency and suitability of the
Subject Products. The warranties set forth above in this Section 8.1 shall not apply to any
Subject Products that:






	 	(i)	 	have been used in a manner not in accordance with the
Specifications;
	 
	 	(ii)	 	have been subject to the opening of any sealed components
without Supplier’s prior written approval except as otherwise contemplated by
the SOW;
	 
	 	(iii)	 	have had changes made by OEM or OEM’s agents to the physical,
mechanical, electrical, software or interconnection components of the Subject
Products supplied by Supplier without written authorization of Supplier to do
so or as contemplated by this Agreement or any SOW. Private labeling or
re-labeling, modifying the markings as long it is done in a proper way shall
not be deemed as a modification of the Subject Products which may waive or
limit the warranties;
	 
	 	(iv)	 	have been improperly installed or tested, integrated or
combined with other products other than with the products contemplated by this
Agreement or any SOW (when such integration or combination causes the defect in
the Subject Products);
	 
	 	(v)	 	have been repaired or altered by anyone not under the control
of, or not having the written authorization of Supplier to do such repair or
alteration, with the exception of repairs by OEM in accordance with
instructions supplied by Supplier;
	 
	 	(vi)	 	have been subjected to unusual physical or electrical stress,
or forces beyond normal use within the specified operational and environmental
parameters set forth in the applicable Specification;




12









 






	 	(vii)	 	have been subjected to improper storage, accident, neglect,
misuse or abuse (including defects caused by shipping) by a party other than
Supplier; or
	 
	 	(viii)	 	there is a failure to perform operator handling and scheduled maintenance
instructions supplied by Supplier.






	 	8.2	 	Other Warranties. Supplier represents and warrants to OEM that it has
all necessary rights, power, and authority to (i) enter into this Agreement, (ii)
consummate the transactions contemplated hereunder, and (iii) grant the licenses
that are granted to OEM hereunder.
	 
	 	8.3	 	Survival of Warranties. All warranties specified above in Section 8.1
will survive any inspection, delivery, acceptance, payment or resale by OEM and be in
effect for *** following the date of shipment of the Subject Product from Supplier.
	 
	 	8.4	 	Repairs And Replacement. OEM may return defective Subject Products
under warranty to Supplier for repair or replacement as specified in this Section 8.4.
OEM will, at its cost, ship defective Subject Products under warranty to Supplier for
such warranty repair by Supplier. Supplier shall, at its cost, return repaired or
replacement Subject Products, which may include at Supplier’s discretion refurbished
Subject Products, to OEM.
	 
	 	8.5	 	Representations and Warranties of OEM.






	 	8.5.1	 	Foreign Corrupt Practices Act. In conformity with the United
States Foreign Corrupt Practices Act, OEM represents and warrants that it shall
not directly or indirectly make an offer, payment, promise to pay, or authorize
payment, or offer a gift, promise to give, or authorize the giving of anything
of value for the purpose of influencing an act or decision of an official of
any foreign government or inducing such a person to use his influence to affect
any such governmental act or decision in order to assist Supplier in obtaining,
retaining or directing any such business.
	 
	 	8.5.2	 	Export Control. Provided that Supplier provides OEM all
required information reasonably requested by OEM regarding the Subject
Products, OEM shall comply with all applicable export control, import control
and trade embargo laws, rules and regulations, whether foreign or domestic with
respect to the distribution of the Joint Products.
	 
	 	8.5.3	 	Other Warranties. OEM represents and warrants to Supplier that
it has all necessary rights, power, and authority to (i) enter into this
Agreement, (ii) consummate the transactions contemplated hereunder, and (iii)
grant the licenses that are granted to Supplier hereunder.






	 	8.6	 	DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SUPPLIER
AND OEM MAKE NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR




13









 






	 	 	 	OTHERWISE, REGARDING ANY SUBJECT PRODUCTS OR OTHER PRODUCTS FURNISHED OR SOLD UNDER
THIS AGREEMENT OR OTHERWISE. FURTHER, SUPPLIER AND OEM EACH EXPRESSLY DISCLAIM ALL
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT.
	 
	 	8.7	 	OEM Covenants. OEM agrees to keep Supplier informed as to any problems
encountered with any Subject Product or Supplier Software and any resolutions arrived
at for those problems, and to communicate promptly to Supplier any and all
modifications, design changes or improvements of the Subject Products or
Supplier Software suggested by any customer, employee or agent. OEM further agrees,
subject to OEM’s Intellectual Property Rights in the OEM Software, that (i) Supplier
shall have and is hereby assigned any and all right, title and interest in and to
any such suggested modifications, design changes or improvements of the Subject
Products or Supplier Software without the payment of any additional consideration
therefore either to OEM or its employees, agents or customers and (ii) it will fully
cooperate, at Supplier’s expense, with Supplier in this regard. OEM shall also
promptly notify Supplier of any infringement of any trademarks or other proprietary
rights relating to the Subject Products or Supplier Software to which OEM becomes
aware.
	 
	 	8.8	 	Supplier Covenants. ***
	 
	 	 	 	Supplier agrees to keep OEM informed periodically as to problems encountered with
the Subject Product or Supplier Software and resolutions arrived at for those
problems, and to communicate periodically to OEM modifications, design changes or
improvements of the Subject Products or Supplier Software that are applicable to the
Joint Products that are suggested by customers, employees or agents; provided,
however, that OEM acknowledges that Supplier may not be able to communicate to OEM
information that is confidential to parties outside this Agreement.
	 
	 	 	 	***






	9.	 	SAFETY STANDARD CHANGES






	 	9.1	 	Safety Standard Changes. Supplier will give notice to OEM if any
upgrade, substitution, or other change to a Subject Product is required to make that
product meet applicable safety standards or other governmental statutes, rules, orders,
or regulations and make the changes required as quickly as practicable. All affected
Subject Products already purchased by OEM may either be returned to Supplier for
upgrade to current revisions or upgraded by Supplier or OEM in the field. If a Subject
Product meets applicable safety standards and other governmental requirements at the
time of manufacture, OEM and Supplier will allocate the costs of any subsequent
upgrade, substitution, or other required change required in an equitable manner based
on good faith discussions between the parties.




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	10.	 	SUPPORT SERVICES






	 	10.1	 	General. Supplier will provide OEM with Support for the Subject
Products as specified and in consideration for the support fees in the support terms
attached as Exhibit C.
	 
	 	10.2	 	Unit Support Purchase Requirement. OEM will purchase Support for all
purchased Units according to pricing specified in Exhibit C.
	 
	 	10.3	 	Spare Parts. OEM shall have the option to maintain a local in-country
Spares inventory for same day and & next day support of
OEM’s customers. Such inventory can be purchased by OEM from Supplier as part of the regular ordering
process as specified in Section 6.
	 
	 	10.4	 	Supplier support obligations for the Subject Product purchased under this
Agreement shall survive termination or expiration of this Agreement to cover support of
Subject Product delivered under Orders placed prior to termination or expiration of the
Agreement for so long as OEM pays the support fees set forth in Exhibit C
attached hereto and provided that such support obligations shall continue for a period
not to exceed *** after termination or expiration of the Agreement.






	11.	 	OBSOLESCENCE AND END OF LIFE — SUPPORT OBLIGATION






	 	11.1	 	By Supplier. If Supplier discontinues the supply of any Subject Product
(a “Discontinued Product”) per Section 4.2.4, Supplier will provide OEM with support on
the Discontinued Product for a period of not less than *** from the last date of
shipment of the Discontinued Product subject to OEM’s payment of the support fees set
forth on Exhibit C.






	12.	 	TRAINING






	 	12.1	 	Technical Training. OEM shall have no less than two (2) engineers
certified under Supplier’s System Technical Training Program (“Training Program”).
Training Program shall be conducted either at a Supplier Training Site or on OEM
premises. Cost for Supplier’s Training Program shall be conducted at no charge to OEM
for the first two (2) engineers. Additional engineers shall be trained at a cost of ***
per student. In the event that OEM elects to have the Training Program conducted on OEM
premises, OEM will cover Supplier travel expenses. OEM is to issue a purchase order in
advance for all training classes.
	 
	 	12.2	 	Training Material Localization and Translations. Supplier will provide
all training classes, methods and materials (“Training Material”) in English. OEM may,
at no charge, localize and translate Supplier Training Material. OEM will bear sole
responsibility for all costs associated with such translations and localizations. OEM
shall provide Supplier with one (1) copy of all such translations and localization in
electronic form and Supplier shall have the unlimited, perpetual




15









 






	 	 	 	right to use,
reproduce, modify, distribute, display and perform such translations and localizations.






	13.	 	MARKETING






	 	13.1	 	Marketing Efforts. OEM shall use commercially reasonable efforts to
market and promote sales of Joint Products. If Supplier receives any inquiries from
third parties desiring to purchase the Joint Products, Supplier shall promptly refer
all such inquiries to OEM.
	 
	 	13.2	 	End User License. All software (including firmware) included with
Subject Products is licensed and not sold. OEM shall require all end users of the Joint
Products to execute or otherwise become a party to the software license
agreement in substantially the form of which is attached hereto as Exhibit
E, in accordance with Section 5.3. Supplier reserves the right to audit OEM to
determine its compliance with this provision.
	 
	 	13.3	 	Limited Right to Use Marks. OEM may use the name of Supplier and the
name of the Subject Products in advertising and marketing the Joint Products, subject
to Supplier’s prior approval of such marketing materials, such approval not to be
unreasonably withheld, conditioned or delayed. Except as otherwise specified in this
Section 13.3, nothing in this Agreement shall be construed to grant OEM any rights in
Supplier’s Marks.
	 
	 	13.4	 	Private Labeling. Supplier acknowledges and agrees that OEM will
private label all Subject Products with OEM’s name and logos so that the name and logos
of Supplier will not appear on any Joint Products. In accordance with OEM’s
instructions, Supplier will ensure that the Subject Products delivered to OEM contain
the OEM Marks, serial number format, and packaging specified by OEM and conforming to
OEM specifications for external appearance (which will not require any material change
in form or dimensions of the Subject Products or require commercially unreasonable
actions). Supplier will have no other right or license in any OEM Marks or to sell or
distribute any Joint Products.
	 
	 	13.5	 	Press Release and Co-Marketing. Within thirty (30) days of the
execution of this Agreement, or as otherwise agreed upon in writing by the parties, OEM
and Supplier will issue a joint press release regarding this Agreement. The parties
will further discuss the marketing and promotion of the Joint Products, including other
joint press releases and white papers and other collateral. In addition, within thirty
(30) days after the GA Date of a Joint Product, or as otherwise agreed upon in writing
by the parties, OEM and Supplier will issue a joint press release regarding the Joint
Product. Nothing in this agreement shall be construed to prohibit OEM or Supplier from
accurately attributing Supplier with design and manufacture of the platform of the
Joint Product. Except for such routine attribution by OEM, all other promotional
activity of either party in which the name or mark of the other party is included shall
be subject to prior review and written approval of such other party, such approval not
to be unreasonably withheld or delayed. Except as 




16









 






	 	 	 	set forth in this Section 13.5,
neither party shall issue any press release regarding this Agreement without the prior
written consent of the other party.






	14.	 	INFRINGEMENT PROTECTION






	 	14.1	 	Supplier’s Duty to Defend. Except as provided in Section 14.3 below,
Supplier will defend OEM and its officers and directors from any claim that the making,
having made, use, import or sale of any Licensed Mark, Subject Product, or the
reproduction, display, performance, or distribution of any Licensed Mark, Subject
Product, Supplier Software or Documentation, under this Agreement infringes any third
party copyright, trademark or trade secret or other Intellectual Property Right; and
Supplier shall pay all costs, fees and expenses (including reasonable attorneys’ fees)
incurred by OEM in any such claim and monetary damages that
are awarded by a court of competent jurisdiction against OEM as a result of such
claim.
	 
	 	14.2	 	OEM’s Duty to Notify. OEM will give Supplier: (a) prompt written notice
of any such claim or action, (b) sole control of such claim or action and (c) all
reasonable assistance necessary to defend and settle the claim. Supplier shall not be
responsible for any settlement by OEM with respect to such claims that was not approved
in writing by Supplier (such approval not to be unreasonably delayed or denied).
	 
	 	14.3	 	Exceptions. Supplier’s defense and indemnification duty shall not apply
to third party infringement claims to the extent based on infringement directly
attributable to (such that the infringement would not have arisen but for):






	 	a.	 	Modification or alteration of any Subject Product (including
any software therein) other than as contemplated in the Specifications or any
SOW;
	 
	 	b.	 	Incorporation or use of OEM Software in the Joint Product;
	 
	 	c.	 	Use of the Subject Product in combination with equipment,
devices or software not delivered by Supplier other than as contemplated in the
Specifications or any SOW; or
	 
	 	d.	 	Use of the Subject Product in a manner inconsistent with the
Specifications.






	 	14.4	 	Additional Remedies For Infringing Subject Products. If the use or
combination of any Subject Product provided under the terms of this Agreement is
enjoined or may be likely to be enjoined (the “Infringing Product”), Supplier may, at
its expense, either:






	 	a.	 	Procure for OEM and its customers the right to continue using
or combining the Infringing Product;




17









 






	 	b.	 	Replace the Infringing Product with a non-infringing product of
equivalent function and performance;
	 
	 	c.	 	Modify the Infringing Product to be non-infringing, without
detracting from function or performance; or
	 
	 	d.	 	If (a)-(c) are not reasonably possible, require the return of
the Infringing Product and refund the purchase price of such Infringing Product
to OEM.






	 	 	Any right exercised by Supplier under this Section 14.4 shall not relieve Supplier of its
indemnification obligation pursuant to Section 14.1.






	15.	 	COUNTRY OF MANUFACTURE






	 	15.1	 	Country of Origin Marking. OEM shall be responsible for communicating
to Supplier, any and all “country of origin” markings that are required or useful for
the Subject Product, and Supplier will mark each Subject Product, or the container if
there is no room on the Subject Product, with such country of origin information
provided by OEM. OEM shall be responsible for all costs associated with any “country of
origin” markings.






	16.	 	FORCE MAJEURE EVENTS






	 	16.1	 	Delaying Causes. Supplier will not be liable for any delay in
performance under this Agreement caused by any “act of God” or other cause beyond the
control of Supplier (a “delaying cause”). Supplier will give OEM prompt notice of any
delaying cause and its best estimate of the expected duration of such cause. In the
event of a delaying cause reasonably expected to last for more than two (2) months, OEM
may terminate this Agreement.






	17.	 	TERMINATION






	 	17.1	 	Termination for Breach. If either party is in breach of any material
provision of this Agreement or any SOW, the non-breaching party may, by notice to the
breaching party, terminate this Agreement and any outstanding SOWs and Orders, unless
the breaching party cures the breach within thirty (30) days after receipt of notice
thereof from the other party; provided that in the case of nonpayment by OEM, after the
first such nonpayment breach, and delivery of notice by Supplier of such breach, any
subsequent breach by OEM of the payment obligations under this Agreement must be cured
within ten days.
	 
	 	17.2	 	Termination by OEM. OEM shall have the right to immediately terminate
this Agreement in the event that the GA Date has not occurred by October 1, 2005 due to
Supplier’s failure to use commercially reasonable efforts to perform the technical
integration and development efforts to be performed by Supplier prior the GA Date
pursuant to the terms of this Agreement.




18









 






	 	17.3	 	Termination by Supplier. Supplier shall have the right to immediately
terminate this Agreement in the event that the GA Date has not occurred by October 1,
2005 due to OEM’s failure to use commercially reasonable efforts to perform the
technical integration and development efforts to be performed by OEM prior to the GA
Date pursuant to the terms of this Agreement. The parties acknowledge that OEM’s
failure to perform the development efforts for the GA Date to occur by October 1, 2005
will result in Supplier facing substantial damage that will be difficult to measure and
therefore, liquidated damages in the amount of *** will accrue to Supplier and if
accrued, such sum will be due and payable on November 1, 2005.
	 
	 	17.4	 	Insolvency. In addition, either party may terminate this Agreement upon
written notice to the other party if the other party:






	 	a.	 	is the subject of any proceeding, whether voluntary or
involuntary, in bankruptcy or insolvency by or against such party (provided
that an involuntary proceeding shall only be deemed a breach if it is not
stayed within sixty (60) days following commencement thereof); or
	 
	 	b.	 	has appointed, with or without such party’s consent, a receiver
or an assignee for the benefit of creditors.






	 	17.5	 	Consequences. In the event of a termination of this Agreement for any
reason and notwithstanding any other terms set forth in this Agreement, any Orders
placed by OEM prior to the termination date and accepted by Supplier as set forth in
Section 6.2 that are not shipped by Supplier within fifteen (15) days of the Delivery
Date specified in the corresponding Order shall be deemed automatically cancelled and
all amounts owed to Supplier under such Order(s) (including, without limitation, the
Initial Purchase) shall no longer be due and all amounts paid to Supplier for such
unfulfilled Orders (including, without limitation, the Initial Purchase or any portion
thereof) shall be refunded to OEM.






	18.	 	CONFIDENTIAL INFORMATION






	 	18.1	 	Confidential Information. During the Term, a party (the “Recipient”)
may receive or have access to certain confidential or other proprietary information
(“Confidential Information”) of the other party (the “Discloser”), that is not
generally known to the public, whether of a technical, business, or other nature
(including, without limitation, trade secrets, know-how, schematics, layouts, design
details, bills of material, source code and other information relating to the
technology, products, product strategy or roadmap, customers, business plans,
promotional and marketing activities, finances, production schedules, purchases,
shipments, and other business affairs of Discloser) that is disclosed by Discloser or
that is otherwise learned by Recipient in the course of its discussions and business
dealings with, or its physical or electronic access to the premises of, Discloser or
its affiliates and that has been identified as being proprietary and/or confidential or
that, by the nature of the circumstances surrounding the disclosure 




19









 






	 	 	 	or receipt, ought
to be treated as proprietary and confidential. Confidential Information also includes
all information concerning the existence and progress of the production plans,
dealings, business, sales and other transactions between the parties and the identity
of Discloser’s vendors, customers, and strategic partners regardless of whether any
such information is marked or otherwise identified in writing as confidential.
	 
	 	18.2	 	Exclusions. The term “Confidential Information” shall not include
information that (a) was publicly available at the time of disclosure; (b) became
publicly available after disclosure without breach of this Agreement by the Recipient;
(c) was in the Recipient’s possession prior to disclosure, as evidenced by the
Recipient’s written records, and was not the subject of an earlier confidential
relationship with Discloser; (d) was rightfully acquired by the Recipient after
disclosure by the Discloser from a third party who was lawfully in possession of the
information and was under no obligation to maintain its confidentiality; or (e)
is independently developed by the Recipient’s employees or agents who have not had
access to the Confidential Information.
	 
	 	18.3	 	Use and Ownership of Confidential Information. Recipient shall not
disclose the Confidential Information to anyone without the specific prior written
consent of Discloser. In addition, Discloser shall not use the Confidential Information
for any purpose other than as specified in this Agreement, and Recipient shall not
allow or permit others to use the Confidential Information for any purpose. Recipient
shall take all reasonable measures to avoid and prevent the disclosure, dissemination,
or unauthorized use of the Confidential Information, including at a minimum those
measures Recipient takes to protect its own confidential information.
	 
	 	18.4	 	Return of Confidential Information. Upon Discloser’s written request,
Recipient shall return or destroy (or, in the case of electronic embodiments,
permanently erase) all tangible material embodying the Confidential Information (in all
forms and including, without limitation, all documents, samples, summaries, copies, and
excerpts of the Confidential Information) in its possession or under its control.
Recipient shall retain no copies of any such materials, and Recipient shall certify in
writing to Discloser that such destruction or return has been accomplished.
	 
	 	18.5	 	Injunctive Relief. Each Party acknowledges that disclosure or use of
the Confidential Information in violation of this Agreement could cause irreparable
injury to the other party for which monetary damages may be difficult to ascertain or
which could be an inadequate remedy. Each party therefore agrees that Discloser shall
have the right, in addition to its other rights and remedies (including, without
limitation, the right to recover damages incurred by reason of any breach by
Recipient), to seek injunctive relief for any violation of this Agreement without
posting bond, or by posting bond at the lowest amount required.




20









 












	19.	 	LIMITATION OF LIABILITY




IN NO EVENT SHALL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY INCIDENTAL,
INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION LOST
PROFITS OR DAMAGES RESULTING FROM, OR ARISING OUT OF, ANY PERFORMANCE OR NONPERFORMANCE OF THIS
AGREEMENT OR LOSS OF USE OR LOST OR CORRUPTED DATA OR SOFTWARE, REGARDLESS OF WHETHER SUCH DAMAGES
ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY AND EVEN IF SUCH PARTY HAS BEEN
ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF; PROVIDED THAT THE PRECEDING
LIMITATION SHALL NOT APPLY FOR BREACH OF SECTION 18 (CONFIDENTIAL INFORMATION) OR MISUSE OF THE
OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS FOR WHICH EACH PARTY’S LIABILITY FOR INCIDENTAL,
INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, IF ANY, SHALL BE LIMITED TO ***. EXCEPT FOR
BREACH OF SECTION 18
(CONFIDENTIAL INFORMATION) OR MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH
PARTY’S TOTAL LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR UNDER THIS AGREEMENT OR FOR BREACH OF
THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT
LIABILITY OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE AMOUNTS PAID TO SUPPLIER HEREUNDER FOR
THE APPLICABLE PRODUCT. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY EVEN IF A PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF
ANY LIMITED REMEDY.





	20.	 	EFFECT OF TERMINATION






	 	20.1	 	Effect of Termination. All rights and licenses under this Agreement
shall terminate upon the termination or expiration of this Agreement, provided, however
that the provisions of Section 2 (Definitions), Sections 5.1 (General Rule &
Ownership), 5.2 (SOW Ownership Rights), 5.6(Reserved Rights), 10 (Support Services), 14
(Infringement Protection), 18 (Confidential Information), 19 (Limitation of Liability),
20 (Effect of Termination), and 21 (Miscellaneous) and the payment obligations of OEM
under this Agreement (including obligations to pay liquidated damages under Section
17.3 ) will each survive termination or expiration of this Agreement in accordance with
their terms; provided further that Section 5.8 (Source Code Escrow) will survive
termination or expiration of this Agreement for so long as the Supplier support
obligations of this Agreement survive termination or expiration of this Agreement
pursuant to Section 10.4 of this Agreement; provided further, however, that end-user
licenses granted to customers in accordance with this Agreement will remain in effect
in accordance with their terms.




21









 












	21.	 	MISCELLANEOUS






	 	21.1	 	Notices. All notices to be given under this Agreement must be in
writing addressed to the receiving party’s designated recipient specified in
Exhibit D Notices are validly given upon the earlier of confirmed receipt by
the receiving party or three days (seven days for international notices) after dispatch
by courier or certified mail, postage prepaid, properly addressed to the receiving
party. Notices may also be delivered by telefax and will be validly given upon oral or
written confirmation of receipt. Either party may change its address for purposes of
notice by giving notice to the other party in accordance with these provisions.
	 
	 	21.2	 	Exhibits. The following Exhibits are attached to this Agreement and are
deemed a part hereof and incorporated in this Agreement by reference:




Exhibit A
      (Pricing)

Exhibit A-1    (Specifications)

Exhibit A-2    (Volume Discount Schedule)

Exhibit A-3    ***

Exhibit B        (Lead Times)

Exhibit C        (Support Services)

Exhibit D        (Designated Recipients)

Exhibit E        (End-User License Agreement)





	 	21.3	 	Independent Contractors. The relationship of the parties established
under this Agreement is that of independent contractors and neither party is a partner,
employee, agent or joint venturer of or with the other.
	 
	 	21.4	 	Assignment. Neither party may assign or transfer, whether voluntarily,
by operation of law, or otherwise, any rights or delegate any duties under this
Agreement without the prior written consent of the other party. Any purported transfer,
assignment or delegation without such prior written consent will be null and void and
of no force or effect. Notwithstanding the foregoing, each party shall have the right
to assign this Agreement to any successor to substantially all of its business or
assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise,
provided that such assignee assumes all obligations hereunder. Subject to the
foregoing, this Agreement will bind and inure to the benefit of the parties and their
respective successors and permitted assigns.
	 
	 	21.5	 	No Waiver. The waiver of any term, condition, or provision of this
Agreement must be in writing and signed by an authorized representative of the waiving
party. Any such waiver will not be construed as a waiver of any other term, condition,
or provision except as provided in writing, nor as a waiver of any subsequent breach of
the same term, condition, or provision.
	 
	 	21.6	 	Reference To Days. All references in this Agreement to “days” will,
unless otherwise specified in this Agreement, mean calendar days.




22









 






	 	21.7	 	Headings. The Section headings used in this Agreement are for
convenience of reference only. They will not limit or extend the meaning of any
provision of this Agreement, and will not be relevant in interpreting any provision of
this Agreement.
	 
	 	21.8	 	Severability. If any provision in this Agreement is held invalid or
unenforceable by a body of competent jurisdiction, such provision will be construed,
limited or, if necessary, severed to the extent necessary to eliminate such invalidity
or unenforceability. The parties agree to negotiate in good faith a valid, enforceable
substitute provision that most nearly effects the parties’ original intent in entering
into this Agreement or to provide an equitable adjustment in the event no such
provision can be added. The other provisions of this Agreement will remain in full
force and effect.
	 
	 	21.9	 	Entire Agreement; Amendments; Counterparts. This Agreement, all
Exhibits and all duly executed SOWs comprise the entire understanding between the
parties with respect to its subject matters and supersedes any previous communications,
representations, or agreements, whether oral or written. For purposes of construction,
this Agreement will be deemed to have been drafted by both parties. No modification of
this Agreement will be binding on either party unless in writing and signed by an
authorized representative of each party. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but
all of which shall constitute but one and the same instrument. In the event of any
conflict between this Agreement and an SOW, this Agreement shall control unless such
SOW expressly identifies such conflict.
	 
	 	21.10	 	Governing Law; Venue. This Agreement will be governed in all respects
by the laws of the State of New York, without reference to any choice of laws
provisions. The parties expressly agree that the U.N. Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
	 
	 	21.11	 	Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY
DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL,
BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND
REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS
AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
	 
	 	21.12	 	Arbitration. Any disputes arising under this Agreement shall be
submitted to arbitration in accordance with such rules as the parties agree. If the
parties are unable to agree on arbitration procedures, arbitration shall be conducted
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Any such award shall be final and binding upon both parties. Any
arbitration shall take place in Santa Clara County, California. Notwithstanding the





23









 





	 	 	 	foregoing, the parties shall be entitled to seek injunctive relief for any disputes
arising under this Agreement.





oooOooo




	 	 	 	 	 	 	 
	APPROVED AND AGREED TO:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	“OEM”

	 	 	 	“SUPPLIER”	 	 
	 
	 	 	 	 	 	 
	SOURCEFIRE, INC.

	 	 	 	BIVIO NETWORKS, INC.	 	 
	 
	 	 	 	 	 	 
	By: /s/ E. Wayne Jackson

	 	 	 	By: /s/ Elan Amir	 	 
	 	 	 	 	 	 	 
	Name: E. Wayne Jackson

	 	 	 	Name: Elan Amir	 	 
	 
	 	 	 	 	 	 
	Title: Chief Executive Officer

	 	 	 	Title: Chief Executive Officer	 	 






24









 






EXHIBIT A




Subject Product; Unit Definition; Pricing




     The Supplier Hardware Platform is detailed in the table below. Supplier Software (B2000P
Platform Software Bundle) is a no-charge mandatory option to enable functionality of the Supplier
Hardware Platform. A “Unit” is defined as either one (1) of SF-1-B2000P-1APC, SF-1-B2000P-ST-2APC
or SF-1-B2000P-1NPC



	 	 	 	 	 	 	 
	Part Number	 	Description	 	Price
	System Hardware
	 	 	 	 	 	 
	SF-1-B2000P-1APC	 	Bivio 2000P System Hardware with one NPC and one APC: •	 	***
	 
	 	 	 	 	 	 
	 

	 	•
	 	Includes 1 Chassis, dual AC power supplies, NPC, APC,

36GB SCSI hard drive	 	 
	 
	 	 	 	 	 	 
	 

	 	•
	 	Bivio 2000 Network Processor Card (NPC) with Network
Processor, Control CPU and two Application CPUs	 	 
	 
	 	 	 	 	 	 
	 

	 	•
	 	Bivio 2000 Application Processor Card (APC) with four
Application CPUs	 	 
	 
	 	 	 	 	 	 
	 

	 	•
	 	1 GB of memory per CPU	 	 
	 
	 	 	 	 	 	 
	 

	 	•
	 	Bivio 2000 Network Interface Module(s) not included	 	 
	 
	 	 	 	 	 	 
	SF-1-B2000P-ST-2APC	 	Bivio 2000P Stacking Unit with two APCs:	 	***
	 
	 	 	 	 	 	 
	 

	 	•
	 	Includes 1 Chassis, dual AC power supplies, 2APCs	 	 
	 
	 	 	 	 	 	 
	 

	 	•
	 	Each Bivio 2000 Application Processor Card (APC) with
four Application CPUs	 	 
	 
	 	 	 	 	 	 
	 

	 	•
	 	1 GB of memory per CPU	 	 
	 
	 	 	 	 	 	 
	 

	 	•
	 	Includes stacking cable for system scaling	 	 
	 
	 	 	 	 	 	 
	SF-1-B2000P-1NPC	 	Bivio 2000P System Hardware with one NPC	 	***
	 
	 	 	 	 	 	 
	 

	 	•
	 	Includes 1 Chassis, dual AC power supplies, NPC, 36GB

SCSI hard drive	 	 
	 
	 	 	 	 	 	 
	 

	 	•
	 	Bivio 2000 Network Processor Card (NPC) with Network
Processor, Control CPU and two Application CPUs	 	 
	 
	 	 	 	 	 	 
	 

	 	•
	 	1 GB of memory per CPU Bivio 2000 Network Interface
Module(s) not included	 	 
	 
	 	 	 	 	 	 
	B2000-STKCAB	 	Stacking cable for HA configuration and system scaling	 	***
	 
	 	 	 	 	 	 
	Network Interfaces
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	B2000P-NIM-4GE(CU)	 	4-port 10/100/1000 Network Interface Module for Bivio 2000	 	***
	 
	 	 	 	 	 	 
	 

	 	•
	 	4-port GE NIM with 10/100/1000 copper interfaces with

optional fiber SFP interface on 1 port (fiber SFP SX

multimode module not included)	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	B2000P-NIM-4GE(FI)	 	4-port Fiber Network Interface Module for Bivio 2000	 	***
	 
	 	 	 	 	 	 
	 

	 	•
	 	4-port GE NIM with 4 fiber SFP interfaces (fiber SFP SX

multimode module not included)	 	 
	 
	 	 	 	 	 	 
	B2000P-NIM-4GE(CU)-BY	 	4-port 10/100/1000 Network Interface Module for Bivio 2000 with
hardware bypass	 	***






25









 






	 	 	 	 	 	 	 
	Part Number	 	Description	 	Price
	 

	 	•
	 	4-port GE NIM with 10/100/1000 copper interfaces with

hardware bypass
	 	 
	 
	 	 	 	 	 	 
	Hardware Upgrades
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	U-HD-SCSI-36G	 	Factory-installed second hard drive SCSI 36 GB	 	***
	 
	 	 	 	 	 	 
	 

	 	•
	 	Includes RAID-1 support	 	 
	 
	 	 	 	 	 	 
	SFP-SR	 	Small Form Factor SX Multimode Fiber Module (850nm SR laser, 3.3V)	 	***
	 
	 	 	 	 	 	 
	 

	 	•
	 	For Fiber GE NIMs and optional fiber interface on 4-port
copper GE NIM	 	 






The following spare parts for Subject Product are available:




	 	 	 	 	 
	Part Number	 	Description	 	Price
	Spares List
	 	 	 	 
	 
	 	 	 	 
	SP2000-NPC-1G

	 	Bivio 2000 Network Processor Card (NPC) with 1 GB of CPU memory per CPU
	 	***
	 
	 	 	 	 
	SP2000-APC-1G

	 	Bivio 2000 Application Processor Card (APC) with 1GB of CPU memory for
each CPU (4 CPUs)
	 	***
	 
	 	 	 	 
	SP2000-HD-SCSI-36G

	 	Hard drive SCSI 36 GB
	 	***
	 
	 	 	 	 
	SP2000-PS-AC

	 	Single Bivio 2000 AC Power Supply
	 	***
	 
	 	 	 	 
	SP2000-CHASSIS

	 	Bivio 2000 Chassis (incl. dual AC P/S, fan tray)
	 	***
	 
	 	 	 	 
	SP2000-NIM-4GE(CU)-BY

	 	4-port GE NIM with 10/100/1000 copper interfaces with hardware bypass
	 	***
	 
	 	 	 	 
	SP2000-NIM-4GE(CU)

	 	4-port 10/100/1000 Network Interface Module with optional fiber SFP

interface on 1 port (fiber SFP module not included)
	 	***
	 
	 	 	 	 
	SP2000-NIM-4GE(FI)

	 	4-port fiber GE Network Interface Module (fiber SFP module not included)
	 	***
	 
	 	 	 	 
	SP2000-FAN-TRAY

	 	Fan Tray for Bivio 2000
	 	***
	 
	 	 	 	 
	SP2000-STKCAB

	 	Stack Cable for HA configuration and system scaling
	 	***
	 
	 	 	 	 
	SP2000-MEM-1G

	 	Single 1 GB memory module for one CPU
	 	***
	 
	 	 	 	 
	SPARE-SFP-SR

	 	Small Form Factor SX Multimode Fiber Module (850nm SR laser, 3.3V)
	 	***






26









 






EXHIBIT A-1



Specifications



System Performance





	 	•	 	Max. of 4 Gb/s packet processing





Advanced System Features





	 	•	 	Gateway routed mode
	 
	 	•	 	Transparent inline mode
	 
	 	•	 	Passive sniffing mode
	 
	 	•	 	3D NetworkingTM scaling technology for application processing scaling





High Availability





	 	•	 	1:1 system redundancy with internal failover communication through
backplane extension cable





Operating System





	 	•	 	Linux 2.4 hardened
	 
	 	•	 	BiviOSTM and APIs for system interface





Hardware Features





	 	•	 	Network Processing Card (NPC): 5 Gb/s Network Processor + 2
Application Processing CPUs + 1 Control CPU
	 
	 	•	 	Application Processing Card (APC): 4 Application Processing CPUs
	 
	 	•	 	Dual 8 Gb/s channel backplane
	 
	 	•	 	Two SCSI mass-storage bays
	 
	 	•	 	RAID-1 capabilities
	 
	 	•	 	1 GB memory per application CPU, expandable to 2 GB per CPU





Network Interfaces





	 	•	 	Two network interface module slots
	 
	 	•	 	Supporting modules:






	 	-	 	4-port 10/100/1000 Ethernet + optional Fiber port NIM (only 4 ports
active simultaneously)
	 
	 	-	 	4-port 1 GE Fiber NIM
	 
	 	-	 	4-port 10/100/1000 Ethernet NIM with hardware bypass capability





Dimensions, Power & Operating Conditions:





	 	•	 	2-RU height
	 
	 	•	 	Standard 19” and 23” rack mountable
	 
	 	•	 	Dual redundant power supply (100-240V, 50-60Hz)
	 
	 	•	 	Power: 460W nominal
	 
	 	•	 	Operating Temperature: 0-40C (32-104F)
	 
	 	•	 	Relative Humidity: 10%-90% non-condensing




27









 











EXHIBIT A-2



Volume Discount Schedule


The following table details the per-Unit discount schedule. The Unit Number for a given Unit refers
to the aggregate number of Units Ordered from the beginning of the then-current calendar quarter
through the end of such calendar quarter. ***




28









 







EXHIBIT A-3



***




29









 








EXHIBIT B



Lead Times



	 	 	 
	Part Number	 	Lead Time
	SF-1-B2000P-1APC
	 	***
	SF-1-B2000P-ST-2APC
	 	***
	SF-1-B2000P-1NPC
	 	***






All other Subject Products have lead times ***




30









 








EXHIBIT C



Product Support Services




	1.	 	Definitions






	 	1.1	 	“Level 1 Support” means customer support consisting of the first
contact between the customer and the support organization. This level shall include
logging the issue, collecting all customer information, and answering all basic
questions.
	 
	 	 	 	Example scenarios which could be resolved by Level 1 Support include:






	 	•	 	Requests for Documentation
	 
	 	•	 	Basic System Questions
	 
	 	•	 	CLI Usage information






	 	1.2	 	“Level 2 Support” means customer support consisting of resolving
complex product issues that may require engineering support to fully complete the
customer inquiry.
	 
	 	 	 	Example scenarios which could be resolved by Level 2 Support include:






	 	•	 	Setup for SNMP
	 
	 	•	 	Assistance for diagnostic and debugging tools
	 
	 	•	 	Assistance with complex configuration






	 	1.3	 	“Level 3 Support” means support consisting of receiving, prioritizing,
and creating software bug patches and fixes to resolve customer issues. This support is
typically provided upon confirmation that a customer complaint is based upon a code
error inherent in the system.






	2.	 	OEM Support Commitments






	 	•	 	Provide Level 1 Support and Level 2 Support, and remote diagnostics capabilities
	 
	 	•	 	Have defined procedures to escalate calls to Supplier
	 
	 	•	 	Have defined list of pre-trained authorized contact engineers (see Section 12.1)
	 
	 	•	 	Provide and execute software upgrades and maintenance releases
	 
	 	•	 	Act as customer interface for all Supplier hardware and software warranty issues
	 
	 	•	 	Establish a technical support lab with representative Supplier equipment and
appropriate hardware/software test vehicles
	 
	 	•	 	Provide an automated call-tracking system
	 
	 	•	 	Have a technical staff that is knowledgeable in routing protocols, TCP/IP
networking, and Linux, and keep the staff trained and current on hardware products and
releases
	 
	 	•	 	24x7 Level 1 Support and Level 2 Support helpdesk coverage
	 
	 	•	 	Maintain a local spares inventory for Same Day & Next Day support
	 
	 	•	 	Maintain centralized spares inventory for return to factory support
	 
	 	•	 	Provide on site technical support for end-users




31









 






	 	•	 	Agree to participate in quarterly business reviews and annual capability audits, and
participate in customer satisfaction surveys






	3.	 	Support Process






	 	•	 	Supplier will provide *** hour coverage in its Technical Assistance Center (“TAC”)
Level 3 Support.
	 
	 	•	 	Supplier Support Contracts include unlimited calls
	 
	 	•	 	Supplier will provide both phone and electronic mail support ticketing options.
	 
	 	•	 	Supplier will provide an online Technical Support Web Site.
	 
	 	•	 	Supplier will provide Onsite Professional Services at a rate of *** + travel and
expenses in the event of a serious system defect. This service will be paid by OEM if
the cause of the failure is due to OEM products, OEM engineer or customer. If the fault
is caused by Supplier Product, there will be no charge.






	4.	 	Support Pricing






	 	•	 	Units Designated for Resale: Annual Support Contract pricing per unit is ***
of OEM system hardware pricing listed in Exhibit A.
	 
	 	•	 	Units Designated for Internal OEM Use: Annual support costs for OEM internal
use is *** of hardware pricing listed in Exhibit A.




32









 











Exhibit D



Designated Recipients



	 	 	 	 	 
	 

	 	Supplier:
	 	Elan Amir
	 

	 	 	 	President & CEO
	 

	 	 	 	Bivio Networks, Inc.
	 

	 	 	 	4457 Willow Road, Suite 100
	 

	 	 	 	Pleasanton, CA 94588
	 

	 	 	 	Tel: +1-925-924-8613
	 

	 	 	 	Fax: +1-925-924-8652
	 

	 	 	 	Email: eamir@bivio.net
	 
	 	 	 	 
	 

	 	OEM:
	 	Sourcefire, Inc
	 

	 	 	 	9212 Berger Road, Suite 200
	 

	 	 	 	Columbia, MD 21046
	 

	 	 	 	Attn: General Counsel
	 

	 	 	 	Tel +1-410-423-1900
	 

	 	 	 	Fax: +1-410-290-0024
	 

	 	 	 	Email: legal@sourcefire.com






33









 






Exhibit E




Sourcefire’s



NETWORK APPLIANCE PURCHASE AND LICENSE AGREEMENT



This is a legal agreement (“Agreement”) between you, the party purchasing products, and Sourcefire
Inc., a corporation having offices at 9212 Berger Road, Suite 200, Columbia, MD 21046
(“Sourcefire”). This Agreement is part of a package that includes one or more network appliance
machines and associated Software (defined below) and certain electronic and/or written materials.
This Agreement covers your permitted use of the Network Appliance (defined below) and Software. BY
CLICKING BELOW YOUR ACCEPTANCE OF THIS AGREEMENT YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. If
you do not agree with the terms of this Agreement, you may not use the Network Appliance or any
Software. In such event, promptly return the entire package to the place you obtained it for a full
refund. As used in this Agreement, “Network Appliance” means the combination of Sourcefire’s
network security products, the Sourcefire Software and any Open Source Software, including the
various hardware components and any patches, updates, improvements, additions and other
modifications or revised versions that may be provided by Sourcefire from time to time. “Sourcefire
Software” means any Sourcefire or other software products or firmware provided by Sourcefire for
use with or as part of a Network Appliance or separately therefrom, excluding any and all Open
Source Programs. “Open Source Software” means the open source code software programs that are
provided to you for use as part of a Network Appliance. “Software” means collectively the
Sourcefire Software and the Open Source Software.



1. YOUR PAYMENT OBLIGATIONS. You agree to pay all amounts due or incurred by you, including any
late payment fees, as are specified in an invoice provided by Sourcefire or its designated reseller
(the “Reseller”). If any authority imposes a duty, tax or similar levy (other than taxes based on
Sourcefire’s or its Reseller’s income), you agree to pay, or to promptly reimburse Sourcefire or
its Reseller, as applicable, for all such amounts. You are also responsible for paying all shipping
charges. Unless otherwise indicated in an invoice, all invoices are payable thirty (30) days from
the date of invoice. Overdue amounts are subject to a late payment interest charge, at the lower
rate of (i) one percent (1%) per month, or (ii) the maximum legal rate. You agree to promptly pay
or reimburse Sourcefire or its Reseller, as applicable, for all costs and expenses, including all
reasonable attorneys’ fees, related to any breach of your obligations under this Agreement.



2. TITLE. Subject to the terms and conditions of this Agreement, title, except to the extent the
Network Appliance contains or consists of intellectual property rights of Sourcefire or other third
parties, and risk of loss to each Network Appliance purchased is transferred to you when the
Network Appliance is delivered to Sourcefire’s designated carrier for shipment.



3. GRANT OF SOFTWARE LICENSE. Subject to the terms and conditions of this Agreement, Sourcefire
grants to you a nonexclusive, non-transferable license (the “Sourcefire License”) to use the
Sourcefire Software as part of the Network Appliance solely for your internal operations and
internal security purposes. Such Sourcefire Software may be delivered to


34









 






 you pre-installed on a
Network Appliance, on a recorded or fixed media, or downloaded
electronically from Sourcefire’s web site. You shall own the magnetic or other physical media upon
which the Sourcefire Software is originally or subsequently recorded or fixed, but Sourcefire or
Sourcefire licensors retain all title, copyright and other intellectual proprietary rights in, and
ownership of, the Sourcefire Software regardless of the media upon which the original or any copy
may be recorded or fixed. Any rights in Software not granted herein are expressly reserved by
Sourcefire. Any rights in Software not granted herein are expressly reserved bySourcefire or
Sourcefire licensors.



4. OPEN SOURCE TERMS. You acknowledge that each Open Source Program is distributed under the Open
Source Program license applicable to such Open Source Program, and only such license, and this
Agreement in no ways supplements or detracts from any term or conditions of such open source
license agreement (the “Open Source License”). Notwithstanding anything to the contrary in this
Agreement, you agree and acknowledge that the rights attached to any Open Source Programs provided
hereunder are separate from and do not depend on the Open Source Programs being part of the
Software or Network Appliance.



5. SCOPE OF USE. Except to the extent allowed under the applicable Open Source License, the
Software may only be used by you with the Network Appliance for which the Software is provided and
registered for use. If any Software is provided on separate media (e.g., a CD-ROM), you may make a
reasonable number of copies solely for internal backup purposes.



6. NO REVERSE ENGINEERING, OTHER RESTRICTIONS. Except to the extent allowed under the applicable
Open Source License, you shall not directly or indirectly: (i) sell, lease, redistribute or
transfer any of the Software; (ii) modify, translate, reverse engineer (except to the limited
extent permitted by law), decompile, disassemble, create derivative works based on, sublicense, or
distribute any of the Software; (iii) rent or lease any rights in any of the Software in any form
to any person; (iv) use any Software for the benefit of any third parties (e.g., in an ASP,
outsourcing or service bureau relationship) or in any way other than in its intended manner; (v)
remove, alter or obscure any proprietary notice, labels, or marks on the hardware components of the
Network Appliance or any Software; or (vi) disable or circumvent any access control or related
device, process or procedure established with respect to the Network Appliance, including any
Software or any other part thereof. You are responsible for all use of the Network Appliance
(including any Software) and for compliance with this Agreement; any breach by you or any user
shall be deemed to have been made by you.



7. INTELLECTUAL PROPERTY. Unless otherwise expressly stated herein, this Agreement does not
transfer to you any title or any ownership right or interest in any Software or in any intellectual
property rights in the Network Appliance. You acknowledge that the Software is owned by Sourcefire
and its licensors, and that the Software and Network Appliance contain, embody and are based on
patented or patentable inventions, trade secrets, copyrights and other intellectual property rights
owned by Sourcefire and its licensors.



8. TECHNICAL SUPPORT. You may obtain technical support by separately enrolling in Sourcefire’s
maintenance and support plan (the “Support Plan” see
http://www.sourcefire.com/services/support.html) by paying Sourcefire the then-applicable


35









 






annual
maintenance and support fee. A copy of the terms of the current Support Plan is located at
https://support.sourcefire.com/Support- T&C.pdf.



9. CONFIDENTIALITY. As used herein, “Confidential Information” means any non-public technical or
business information of Sourcefire (or its licensors), including without limitation, any
information, relating to Sourcefire’s techniques, algorithms, software, know-how, current and
future products and services, research, engineering, designs, financial information, procurement
requirements, manufacturing, customer lists, business forecasts, marketing plans and information,
the terms and conditions of this Agreement, and any other information of Sourcefire (or its
licensors) that is disclosed in writing to you or that is disclosed orally and is identified as
“Confidential” at the time of disclosure. You will take all reasonable measures to maintain the
confidentiality of Sourcefire’s Confidential Information, but in no event less than the measures
you use to protect your own confidential information. You will limit the disclosure of Sourcefire’s
Confidential Information to your employees with a bona fide need to access such Confidential
Information in order to exercise your rights and obligations under this Agreement; provided that
all such employees are bound by a written non-disclosure agreement that contains restrictions at
least as protective as those set forth herein. You agree that Sourcefire will suffer irreparable
harm in the event that you breach any obligations under this Section 9 and that monetary damages
will be inadequate to compensate Sourcefire for such breach. In the event of a breach or threatened
breach of any of the provisions of this Section 9, Sourcefire, in addition to and not in limitation
of any other rights, remedies or damages available to it at law or in equity, shall be entitled to
a temporary restraining order, preliminary injunction and/or permanent injunction in order to
prevent or to restrain any such breach.



10. WARRANTY AND DISCLAIMER. Sourcefire warrants that, for a period of ninety (90) days from the
date of initial shipment of the Network Appliance (the “Software Warranty Period”), the unmodified
Software will, under normal use, substantially perform the functions described in its
Documentation. “Documentation” means Sourcefire’s release notes or other similar instructions in
hard copy or machine readable form supplied by Sourcefire to you that describes the functionality
of the Network Appliance and/or Software purchased or licensed hereunder. Sourcefire warrants that
for a period of one (1) year from shipment (the “Hardware Warranty Period”) the unmodified hardware
portions of the Network Appliance will, under normal use, be free of substantial defects in
materials and workmanship. Any and all Open Source Programs provided under this Agreement are
provided “AS IS”. THE FOREGOING EXPRESS WARRANTIES REPLACE AND ARE IN LIEU OF ALL OTHER WARRANTIES
OR CONDITIONS BY THE PARTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO
ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR
NONINFRINGEMENT. YOU ACKNOWLEDGE AND AGREE THAT THE NETWORK APPLIANCE AND THE SOFTWARE ARE DESIGNED
TO BE TOOLS TO ASSIST YOU IN YOUR SECURITY PROGRAMS; SOURCEFIRE MAKES NO WARRANTY THAT ANY NETWORK
APPLIANCE OR ANY SOFTWARE WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY DEFECTS OR IN AN
UNINTERRUPTED MANNER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ALL OPEN SOURCE
PROGRAMS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. THE WARRANTY MADE BY SOURCEFIRE MAY
BE VOIDED BY ABUSE OR MISUSE.




36









 







11. EXCLUSIVE REMEDY. Sourcefire’s sole obligation and liability, and your sole and exclusive
remedy under the warranties set forth in Section 10 shall be for Sourcefire to use
commercially reasonable efforts to remedy the problem, or to replace the defective product,
provided that Sourcefire is notified in writing of all warranty problems during the applicable
warranty period.



12. LIMITATION OF LIABILITY. IN NO EVENT WILL SOURCEFIRE’S AGGREGATE LIABILITY (INCLUDING, BUT NOT
LIMITED TO, LIABILITY FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND
OTHER CONTRACT OR TORT CLAIMS) ARISING FROM OR RELATED TO THIS AGREEMENT, OR THE USE OF THE NETWORK
APPLIANCE OR SOFTWARE, EXCEED THE AMOUNT OF FEES YOU PAID TO SOURCEFIRE OR ITS RESELLER UNDER THIS
AGREEMENT FOR THE NETWORK APPLIANCE THAT GIVES RISE TO SUCH LIABILITY.



13. EXCLUSION OF OTHER DAMAGES. UNLESS OTHERWISE PERMITTED HEREUNDER, UNDER NO CIRCUMSTANCES SHALL
SOURCEFIRE OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY OF THE FOLLOWING: (I) THIRD PARTY
CLAIMS; (II) LOSS OR DAMAGE TO ANY SYSTEMS, RECORDS OR DATA, OR LIABILITIES RELATED TO A VIOLATION
OF AN INDIVIDUAL’S PRIVACY RIGHTS; OR (III) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE,
RELIANCE, OR COVER DAMAGES (INCLUDING LOST PROFITS AND LOST SAVINGS), IN EACH CASE EVEN IF
SOURCEFIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE SOLELY RESPONSIBLE AND
LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE AND ANY
NETWORK APPLIANCE, AND FOR ANY RELIANCE THEREON.



14. INTELLECTUAL PROPERTY INDEMNITY. Sourcefire will defend any action brought against you to the
extent that it is based upon a claim that the Sourcefire Software as provided by Sourcefire to you
under this Agreement infringes any existing U.S. patent or copyright. Sourcefire will pay any
costs, damages and reasonable attorneys’ fees attributable to such claim that are finally awarded
against you in such action. Sourcefire’s obligations under this Section 14 are contingent upon: (i)
you giving prompt written notice to Sourcefire of any such claim; (ii) you allowing Sourcefire to
control the defense and any related settlement of any such claim; and (iii) you furnishing
Sourcefire with reasonable assistance in the defense of any such claim, so long as Sourcefire pays
your reasonable out-of-pocket expenses. This indemnity obligation does not extend to any Open
Source Programs. If your use of the Network Appliance hereunder is, or in Sourcefire’s opinion is
likely to be, enjoined due to the type of claim specified in this section, then Sourcefire may, at
its sole option and expense: (i) procure for you the right to continue using such Network Appliance
under the terms of this Agreement; or (ii) replace or modify such Network Appliance so that it is
non-infringing and substantially equivalent in function to the enjoined Network Appliance.
Sourcefire will have no obligation for any claim of infringement to the extent that it results
from: (i) modifications to the Network Appliance made other than by Sourcefire; or your failure to
use updated or modified Network Appliances provided by Sourcefire to avoid a claim of infringement
or misappropriation.



15. VERIFICATION. You agree that Sourcefire or its designee shall have the right to periodically
conduct on-site audits of your use of the Network Appliance and the Software.


37









 






These audits will be
conducted during regular business hours, and Sourcefire will make reasonable efforts to minimize
interference with your regular business activities. Alternatively, Sourcefire may request that you
complete a self-audit questionnaire in a form provided by
Sourcefire. If an audit reveals unlicensed use of the Software, you agree to promptly order and pay
for sufficient licenses to permit all usage disclosed.



16. LEGAL COMPLIANCE; RESTRICTED RIGHTS. You shall be responsible for, and agree to comply with,
all applicable laws, statutes, ordinances, regulations and other types of government authority
(including without limitation the laws and regulations governing export control, unfair
competition, anti-discrimination, false advertising, privacy and data protection, and publicity)
(“Laws”). Without limiting the foregoing, you agree to comply with all U.S. export Laws and
applicable export Laws of your locality (if you are not in the United States), and you further
agree not to export any Network Appliances, Software or other materials provided by Sourcefire
without first obtaining all required authorizations or licenses. The Network Appliance and the
Software provided to the United States government are provided with only “LIMITED RIGHTS” and
“RESTRICTED RIGHTS” as defined in FAR 52.227-14 if the commercial terms are deemed not to apply.



17. GOVERNING LAW; ARBITRATION. This Agreement shall be governed in all respects by the laws of the
State of New York, USA, without regard to choice-of-law rules or principles. You expressly agree
with Sourcefire that this Agreement shall not be governed by the U.N. Convention on Contracts for
the International Sale of Goods. 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 three (3) arbitrators. The arbitrators shall be knowledgeable in the commercial aspects of
software licensing, open source licensing, 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. Each party shall select one
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. The two
arbitrators selected thereby shall promptly select the third arbitrator in accordance with this
Section 17. If the initial two arbitrators are not selected by the parties within said fifteen (15)
days, then the American Arbitration Association shall select the arbitrators. The arbitrators shall
make detailed written findings to support their award. The arbitrators shall render their decision
no more than sixty (60) days after the parties finally submit the claim, dispute or controversy to
the panel. Judgment upon the arbitration award may be entered in any court having jurisdiction.



18. SEVERABILITY. If any provision of this Agreement is held to be illegal or unenforceable for any
reason, then such provision shall be deemed to be restated so as to be


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enforceable to the maximum
extent permissible under law, and the remainder of this Agreement shall remain in full force and
effect.



19. FORCE MAJEURE. Neither Party shall be liable for any delay or failure due to a force majeure
event and other causes beyond its reasonable control. This provision shall not apply to your
payment obligations.



20. NOTICES. Any notices under this Agreement to Sourcefire will be personally delivered or sent by
certified or registered mail, return receipt requested, or by nationally recognized overnight
express courier, to the address specified herein or such other address as Sourcefire may specify in
writing. Such notices will be effective upon receipt, which may be shown by confirmation of
delivery. All notices to Sourcefire shall be sent to the attention of General Counsel (unless
otherwise specified by Sourcefire)



21. ASSIGNMENT. You may not assign or otherwise transfer this Agreement without Sourcefire’s prior
written consent. 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 if it sells all or substantially all of its assets or if there is otherwise a change of
control. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors
and permitted assigns.



22. FURTHER ASSURANCES. You agree, at Sourcefire’s request and reasonable expense, to provide
reasonable assistance and cooperation to Sourcefire and its designees, and to give testimony and
execute documents and to take such further acts reasonably requested by Sourcefire to acquire,
transfer, maintain, perfect, and enforce Sourcefire’s intellectual property rights as described in
this Agreement. To the extent you fail to do so, you appoint Sourcefire’s officers as your attorney
in fact to execute documents on your (and your personnel’s), successors’ and assigns’ behalf for
this limited purpose.



23. GENERAL. This Agreement is the parties’ complete agreement regarding its subject matter,
superseding any prior oral or written communications. Under no circumstances will the terms of any
purchase order issued by you control or otherwise negate the terms set forth in this Agreement.
Amendments or changes to this Agreement must be in mutually executed writings to be effective.
Sections 1, 2, 6, 7, 9-15, 15-23, and all warranty disclaimers and use restrictions shall survive
the termination or expiration of this Agreement. The parties are independent contractors for all
purposes under this Agreement.




      




Copyright 2003 — 2005, Sourcefire, Inc. All rights reserved. Sourcefire is registered
trademark of Sourcefire, Inc. All other trademarks on this appliance are property of their
respective owners.





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