EX-10.7



 





Exhibit 10.7




Agreement #4904RL1168




This Base Agreement (“Base Agreement”) dated as of October 15, 2004 (“Effective Date”), between
International Business Machines Corporation (“Buyer”) and Voltaire, Inc. (“Supplier”), establishes
the basis for a multinational procurement relationship under which Supplier will provide Buyer the
Products and Services described in SOWs issued under this Base Agreement. Products and Services
acquired by Buyer on or after the Effective Date will be covered by this Base Agreement. This Base
Agreement will remain in effect until terminated.



1.0 Definitions:




“Affiliates” means entities that control, are controlled by, or are under common control with, a
party to this Agreement.



“Agreement” means this Base Agreement and any relevant Statements of Work (“SOW”), Work
Authorizations (“WA”), and other attachments or appendices specifically referenced in this
Agreement.



“Engineering Change” or “EC” means any change(s) to Product.



“Participation Agreement” or “PA” means an agreement signed by one or more Affiliates which
incorporates by reference the terms and conditions in this Base Agreement, any relevant SOW, and
other attachments or appendices specifically referenced in the PA.



“Personnel” means agents, employees or subcontractors engaged or appointed by Buyer or Supplier.



“Prices” means the agreed upon payment and currency for Products and Services, including all
applicable fees, payments and taxes, as specified in the relevant SOW and/or WA.



“Products” means items that Supplier prepares for or provides to Buyer as described in a SOW.



“Services” means work that Supplier performs for Buyer as described in a SOW.



“Statement of Work” or “SOW” means any document that:




	 	1.	 	identifies itself as a statement of work;
	 
	 	2.	 	is signed by both parties;
	 
	 	3.	 	incorporates by reference the terms and conditions of this Base Agreement; and
	 
	 	4.	 	describes the Products and Services, including any requirements, specifications or
schedules.





“Taxes” means any and all applicable taxes, charges, fees, levies or other assessments imposed or
collected by any governmental entity worldwide or any political subdivision thereof and however
designated or levied on sales of Products or Services, or sales, use, transfer, goods and services
or value added tax or any other duties or fees related to any payment made by Buyer to Supplier
for Product and/or Service provided by Supplier to Buyer under or pursuant to this Agreement;
exclusive, however, of taxes imposed upon the net income or capital of Supplier or taxes in lieu of
such net income taxes or such other taxes which are to be borne by the Supplier under law.
Supplier shall also bear sole responsibility for all taxes, assessments, or other levies on its own
leased or purchased property, equipment or software.



“Work Authorization” or “WA” means Buyer’s authorization in either electronic or tangible form for
Supplier to conduct transactions under this Agreement in accordance with the applicable SOW (i.e.,
a purchase order, or other Buyer designated document). A SOW is a WA only if designated as such in
writing by Buyer.



2.0 Statement of Work



Supplier will provide the Products or Services as specified in the relevant SOW only when specified
in a WA. Supplier will begin work only after receiving a WA from Buyer. Buyer may request changes
to a SOW and Supplier will submit to Buyer the impact of such changes. Changes accepted by Buyer
will be specified in an amended SOW or change order signed by both parties. Supplier will maintain
the capability to supply agreed upon Products, including parts of Products, for a period of time as
Voltaire is required by law and any additional periods of time specified in the relevant SOW.
Supplier will notify Buyer of its intent to withdraw any Product and will continue to deliver such
withdrawn Products for the periods as specified in the relevant SOW. Supplier agrees to accept all
WA’s that conform with the terms and conditions of this Agreement;



3.0 Pricing



Supplier will provide Products and Services to Buyer for the Prices. The Prices for Products and
Services specified in a SOW and/or WA and accepted by Buyer plus the payment of applicable Taxes
will be the only amount due to Supplier from Buyer. The relevant SOW or WA shall contain Prices for
each country receiving Products and Services under this Agreement.



					
	 	 	 	 	 
	Form Title: Voltaire Base Agreement
	 	Page 1 of 8
	 	Form Release: 8/98
	 	 	 	 	 
	Form Owner: Global Procurement
	 	 	 	Revision: 3/04






 









 






Agreement #4904RL1168




4.0 Taxes



Supplier’s invoices shall state applicable taxes owed by the Buyer, if any, by tax jurisdiction and
with a proper breakdown between taxable and non-taxable Products and Services. Supplier shall remit
such tax payments to the appropriate jurisdiction. Supplier agrees to use its best efforts to
properly calculate any applicable Taxes at the time of invoice. Supplier and Buyer agree to
cooperate to minimize any applicable Taxes, including reasonable notice and cooperation in
connection with any audit. Any incremental taxes shall be Supplier’s responsibility. If Buyer
provides certification of an exemption from Tax or reduced rate of Tax imposed by an applicable
taxing authority, then Supplier shall not invoice for nor pay over any such Tax unless and until
the applicable taxing authority assesses such Tax, at which time Supplier shall invoice and Buyer
shall pay any such Tax that is legally owed.



Buyer shall withhold taxes, if required under the law to be withheld on payments made to Supplier
hereunder and shall be required to remit to Supplier only the net proceeds thereof (but not less
than the Price). Buyer shall remit the taxes withheld to the appropriate government authority and
agrees to provide Supplier in a timely manner with properly executed documentation or other
information or receipts or certificates evidencing Buyers payment of any such withholding tax



Supplier will indemnify Buyer from any claims by any jurisdiction relating to Taxes paid by Buyer
to Supplier; and for any penalties, fines, additions to tax or interest thereon imposed as a result
of Supplier’s failure to timely remit the Tax payment to the appropriate taxing jurisdiction.
Supplier also shall indemnify Buyer for any claims made by a taxing jurisdiction for penalties,
fines, additions to tax and the amount of interest thereon imposed with respect to Supplier’s
failure to invoice Buyer for the correct amount of Tax.



5.0 Payments and Acceptance



Terms for payment will be specified in the relevant SOW and/or WA. Payment of invoices will not be
deemed acceptance of Products or Services, but rather such Products or Services will be subject to
inspection, test, acceptance or rejection by Buyer until successful integration into Buyer’s
products, or for a period as specified in the relevant SOW, whichever occurs first. Buyer may, at
its option, either reject Products or Services that do not comply with the specifications and
requirements for a refund as specified in the applicable SOW, or require prompt correction or
replacement of such Products upon Buyer’s written instruction. Buyer may reject entire lots of
Products which do not meet quality levels as specified in the relevant SOW and/or WA. .



Unless otherwise provided by local law without the possibility of contractual waiver or limitation,
Supplier will submit invoices, corrected invoices, or other such claims for reimbursement, to Buyer
within (1) year from the date of acceptance of Products or the satisfactory completion of Services.
Exceptions must be specifically authorized by Buyer.



6.0 Electronic Commerce



To the extent permitted by local law, the parties will conduct transactions using an electronic
commerce approach under which the parties will electronically transmit and receive legally binding
purchase and sale obligations (“Documents”), including electronic credit entries transmitted by
Buyer to the Supplier account specified in the relevant SOW and/or WA. The parties will enter into
a separate agreement governing the transmission of such electronic transactions and associated
responsibilities of the parties.



7.0 Warranties



7.1 Ongoing Warranties



Supplier makes the following ongoing representations and warranties:




1. it has the right to enter into this Agreement and its performance of this Agreement will
comply, at its own expense, with the terms of any contract, obligation, law, regulation or
ordinance to which it is or becomes subject;




2. no claim, lien, or action exists or is threatened against Supplier that would interfere with
Buyer’s use or sale of the Products;




3. As of the Effective Date, Products and Services do not infringe any intellectual property
right of a third party;




4. all authors have agreed not to assert their moral rights (personal rights associated with
authorship of a work under applicable law) in the Products, to the extent permitted by law;




5. Products are free from defects in material and workmanship for the time period as specified
in the relevant SOW and/or WA;




6. Products will conform to the warranties, specifications and requirements, including but not
limited to quality requirements in this Agreement;



					
	 	 	 	 	 
	Form Title: Voltaire Base Agreement
	 	Page 2 of 8
	 	Form Release: 8/98
	 	 	 	 	 
	Form Owner: Global Procurement
	 	 	 	Revision: 3/04






 









 






Agreement #4904RL1168





7. Products are free of defects in design (except for written designs provided by Buyer unless
the defects in Buyer’s designs are based on Supplier’s specifications. 7. Products are safe for
use consistent with and will comply with the warranties, specifications and requirements in this
Agreement;




8. Products and Services which interact in any capacity with monetary data are euro ready such
that when used in accordance with their associated documentation they are capable of correctly
processing monetary data in the euro denomination and respecting the euro currency formatting
conventions (including the euro sign);




9. none of the Products contain nor are any of the Products manufactured using ozone depleting
substances such as halons, chlorofluorocarbons, hydrochlorofluorocarbons, methyl chloroform and
carbon tetrachloride as defined by the Montreal Protocol , and as also specified in the relevant
SOW and/or WA;




10. Products are new and do not contain used or reconditioned parts, unless otherwise specified
in the relevant SOW and/or WA;




11. to the extent Products include software code (including without limitation firmware, BIOS,
and device drivers), Products contain no harmful code at time of delivery.




12. all Products and all parts of Products, including, but not limited to parts that may be
identified as field replacement units, customer replacement units, spare parts, and/or parts
that have any floppy disk controller functions and other storage devices shall not experience
data integrity, undetected data loss, or related issues, and shall conform with any other
related requirements specified in the relevant SOW and/or WA;




13. all Products will process date data correctly (including, without limitation, correctly
processing, providing, receiving, and displaying date data within and between the twentieth and
twenty-first centuries), and are designed to exchange date data accurately and correctly with
other products (including, without limitation, hardware, code, other software, and firmware)
when used with products which are designed to exchange date data accurately and correctly;




14. it is knowledgeable with, and is and will remain in full compliance with all applicable
export and import laws, regulations, orders, and policies (including, but not limited to,
securing all necessary clearance requirements, export and import licenses and exemptions from,
and making all proper filings with appropriate governmental bodies and/or disclosures relating
to the release or transfer of technology and software to non U.S. nationals in the U.S., or
outside the U.S., release or transfer of technology and software having U.S. content or derived
from U.S.-origin software or technology); it is knowledgeable with applicable supply chain
security recommendations issued by applicable governments and industry standards organizations
and will make best efforts to comply with such recommendations;




15. it will not export, directly or indirectly, any technology, software or commodities of U.S.
origin or having U.S. content provided by Buyer or their direct product to any of the countries
or to nationals of those countries, wherever located, listed in U.S. Export Administration
Regulations, as modified from time to time, unless authorized by appropriate government license
or regulations;




16. it will not use, disclose, or transfer across borders any information that is processed for
Buyer that may identify an individual (Personal Data), except to the extent necessary to perform
under this Agreement; and




17. it will comply with all applicable data privacy laws and regulations, will implement and
maintain appropriate technical and other protections for the Personal Data, will report any
breaches of protection of Personal Data, and will cooperate fully with Buyer’s requests for
access to, correction of, and destruction of Personal Data in Supplier’s possession.



7.2 Warranty Redemption




If Products or Services do not comply with the warranties in this Agreement, in addition to
all other remedies available at law, equity or in this Agreement. Supplier will repair or replace
Products (at the latest revision level) or re-perform Services, or credit or refund the Price of
Products or Services, such remedy at Buyer’s discretion. For such Products, Supplier will issue to
Buyer a Return Material Authorization (“RMA”) within five (5) days of Buyer’s notice. If Supplier
fails to repair or replace Products or re-perform Services in a timely manner, Buyer may do so and
Supplier will reimburse Buyer for actual and reasonable expenses. After receipt of the RMA, Buyer
may return Products which do not conform to the warranties in
this Agreement from any Buyer location to the nearest authorized Supplier location at cost of
Buyer, and Supplier will, at cost of Supplier, return any repaired or replaced Product in a timely
manner.



7.3 Post Warranty Service



Supplier will offer post warranty Services as specified in the relevant SOW or identify a third
party which will provide such Services. In the event a third party or Buyer will provide such
Services, Supplier will provide the designated party with the information required for the
performance of the Services.



					
	 	 	 	 	 
	Form Title: Voltaire Base Agreement
	 	Page 3 of 8
	 	Form Release: 8/98
	 	 	 	 	 
	Form Owner: Global Procurement
	 	 	 	Revision: 3/04






 









 





Agreement #4904RL1168




7.4 Epidemic Defects




“Epidemic Defects” shall mean Products and their associated Engineering Changes that experience one
or more of the following: (a) the same defect at a rate of ___*___ percent (___*___%) or more
(or other rate that may be specified in an SOW) in any given thirty (30) day rolling period over
the life of the Products, (b) the same defect at a rate of ___*___ percent (___*___%) or more
(or other rate that may be specified in an SOW) of total purchases over the life of the Products,
(c) recalls by Supplier, or otherwise, or (d) safety defects . For Epidemic Defects, Supplier
will, at Buyer’s discretion: (i) refund or credit the Product Price, or replace or repair the
Products at no charge in a timely manner, and (ii) reimburse Buyer for all actual and reasonable
expenses incurred by Buyer related to Epidemic Defects, including, without limitation, costs
associated with repair or replacement, field costs, customer related expenses, problem diagnosis,
and field and finished goods inventory related costs. Supplier will commence such performance
within five (5) calendar days of Buyer’s notice to Supplier of an Epidemic Defect.



8.0 Delivery



8.1 Delivery Logistics



Delivery under this Agreement means delivery to the Buyer location and delivery point as specified
in the relevant SOW and/or WA. Buyer may cancel or reschedule the delivery date or change the
delivery point as specified in the relevant SOW and/or WA. The term of sale will be specified in a
SOW or WA. Buyer may issue a twelve (12) month rolling forecast for quantities of Products that
may be required. Supplier will only deliver the Products specified in a WA. ANY PRODUCT
QUANTITIES CITED IN OR PURSUANT TO THIS AGREEMENT, EXCEPT FOR QUANTITIES CITED IN A WA AS FIRM, ARE
PRELIMINARY AND NON-BINDING ONLY. BUYER MAKES NO REPRESENTATION OR WARRANTY AS TO THE QUANTITY OF
PRODUCTS THAT IT WILL PURCHASE, IF ANY.



8.2 On-Time Delivery



The lead-time for Buyer to issue a WA prior to delivery will be specified in a SOW. Products
specified in a WA for delivery with such lead-time will be delivered on time. Supplier will use
reasonable efforts when Buyer requests delivery with a shorter lead-time. If Supplier cannot
comply with a delivery commitment, Supplier will promptly notify Buyer of a revised delivery date
and Buyer may:




1. cancel without charge Products or Services that were not delivered by the commitment date
and which remain not yet delivered;




2. require Supplier to deliver Products using priority freight delivery at Supplier’s expense
for the incremental freight charges. and




3. exercise all other remedies provided at law, in equity and in this Agreement.



9.0 Intellectual Property



Supplier grants Buyer a non-exclusive, right and license under all intellectual property rights
licensable by Supplier to the extent necessary for Buyer to use and sell the Products. This
Agreement does not grant either party the right to use the other party’s or their Affiliates’
trademarks, trade names or service marks.



Software is licensed, not sold.



Except for the limited rights, licenses and assignments expressly made hereunder, no other license
is granted,



10.0 Supplier Liability for Third Party Claims



10.1 General Indemnification



Supplier will defend, hold harmless and indemnify, including legal fees, Buyer and Buyer Personnel
against third party claims that arise or are alleged to have arisen as a result of negligent or
intentional acts or omissions of Supplier or Supplier Personnel or breach by Supplier of any term
of this Agreement.



10.2 Intellectual Property Indemnification



Supplier will defend, or at Buyer’s option cooperate in the defense of, hold harmless and
indemnify, including reasonable legal fees, Buyer and Buyer Personnel from third party claims that
Supplier’s Products or Services infringe the intellectual property rights of a third party. In
addition, if such a claim is or is likely to be made, Supplier will, at its own expense, exercise
the first of the following remedies that is practicable:




1. obtain for Buyer the right to continue to use and sell the Products and Services consistent
with this Agreement;




2. modify the Products and Services so they are non-infringing and in compliance with this
Agreement;




3. replace the Products and Services, with non-infringing ones that comply with this Agreement;
or




 




			
	*	 	Omitted pursuant to a confidential treatment request. The confidential portion has been filed separately with the SEC.





					
	 	 	 	 	 
	Form Title: Voltaire Base Agreement
	 	Page 4 of 8
	 	Form Release: 8/98
	 	 	 	 	 
	Form Owner: Global Procurement
	 	 	 	Revision: 3/04






 









 





Agreement #4904RL1168





4. at Buyer’s request, accept the cancellation of infringing Services and the return of the
infringing Products and refund any amount paid.

Buyer will give Supplier prompt notice of third
party claims against Buyer, and cooperate in the investigation, settlement and defense of such
claims at Supplier’s expense.



10.3 Exceptions to Indemnification



Supplier will have no obligation to indemnify, defend or hold harmless Buyer or Buyer Personnel for
claims that Supplier’s Products or Services infringe the intellectual property rights of a third
party to the extent such claims arise as a result of:




1. Buyer’s combination of Products or Services with other products or services not reasonably
foreseeable by Supplier and such infringement or claim would have been avoided in the absence of
such combination;




2. Supplier’s implementation of a Buyer originated design and such infringement or claim would
have been avoided in the absence of such implementation;




3. Buyer’s modification of the Products except for intended modifications required for use of
the Products and such infringement or claim would have been avoided in the absence of such
modification; or




4. Any intellectual property right in which Buyer or any of its Affiliates has an ownership
interest therein.



11.0 Limitation of Liability between Supplier and Buyer



In no event will either party be liable to the other for any lost revenues, lost profits,
incidental, indirect, consequential, special or punitive damages. This mutual Limitation of
Liability does not limit the obligations and liability of Supplier provided in the Section
entitled Supplier Liability for Third Party Claims or the Subsection entitled Epidemic Defects. In
no event will either party be liable for the respective actions or omissions of its Affiliates
under this Agreement.



Buyer will not be liable to Supplier (i) under a WA for an amount greater than the amount due and
unpaid amounts under such WA, and (ii) under the Agreement for an amount greater than the amount
due and unpaid amounts under all WAs hereunder.



Supplier acknowledges and agrees that all WA’s or PA’s issued by Buyer’s Affiliate(s) are
independent agreements between Supplier or Supplier Affiliate and the Buyer Affiliate. Buyer shall
not be liable to Supplier or Supplier Affiliate(s) for any actions or inactions of any Buyer
Affiliate(s) under a WA or PA, nor shall any actions or inactions by Buyer’s Affiliate(s)
constitute a breach of the Agreement between Buyer and Supplier.



12.0 Supplier and Supplier Personnel


Supplier is an independent contractor and this Agreement does not create an agency relationship
between Buyer and Supplier or Buyer and Supplier Personnel. Buyer assumes no liability or
responsibility for Supplier Personnel. Supplier will:




1. ensure it and Supplier Personnel are in compliance with all laws, regulations, ordinances,
and licensing requirements;




2. be responsible for the supervision, control, compensation, withholdings, health and safety
of Supplier Personnel;




3. inform Buyer if a former employee of Buyer will be assigned work under this Agreement, such
assignment subject to Buyer approval;




4. ensure Supplier Personnel performing Services on Buyer’s premises comply with the On
Premises Guidelines and upon request, provide Buyer, for export evaluation purposes, the country
of citizenship and permanent residence and immigration status of those persons. Buyer retains
the right to refuse to accept persons made available by Supplier for export control reasons; and




5. not discriminate against any employees, applicants for employment, or any entity engaged in
its procurement practices because of race, color, religion, sex, age, national origin, or any
other legally protected status.



13.0 Insurance



Supplier will maintain at its expense:




1. commercial general or public liability insurance with a minimum limit per occurrence or
accident of * USD (or local currency equivalent);




2. workers’ compensation or employer’s liability insurance as required by local law, such
policies waiving any subrogation rights against Buyer; and




3. automobile liability insurance as required by local statute but not less than * USD (or
local currency equivalent) if a vehicle will be used in the performance of this
Agreement.

Insurance required under clauses (1) and (3) will name Buyer as an additional insured
with respect to Supplier’s negligence and Buyer’s insurable interest , will be primary or
non-contributory regarding insured damages or expenses,




 




			
	*	 	Omitted pursuant to a confidential treatment request. The confidential portion has been filed separately with the SEC.





					
	 	 	 	 	 
	Form Title: Voltaire Base Agreement
	 	Page 5 of 8
	 	Form Release: 8/98
	 	 	 	 	 
	Form Owner: Global Procurement
	 	 	 	Revision: 3/04






 









 





Agreement #4904RL1168





and will be purchased from insurers with an AM Best Rating of B+ or better and a financial class
rating of 11 or better or as otherwise accepted by Buyer.



14.0 Term and Termination



14.1 Termination of this Base Agreement



Either party may terminate this Base Agreement, without any cancellation charge, for a material
breach of this Agreement by the other party or if the other party becomes insolvent or files or has
filed against it a petition in bankruptcy (“Cause”), to the extent permitted by law. Such
termination will be effective at the end of a thirty (30) day written notice period if the Cause
remains uncured. Either party may terminate this Base Agreement without Cause when there are no
outstanding SOWs or WAs.



14.2 Termination of a SOW or WA



a) Buyer may, upon written notice to Supplier, terminate a SOW or WA:




1. with Cause effective immediately or as otherwise specified in such notice; or





2. without Cause effective immediately or as otherwise specified in such notice, provided that;
(i) In the event Buyer terminates without Cause, Supplier will fulfill its obligations to supply
all Products and Services ordered pursuant to the applicable WA and Buyer will compensate
Supplier for such Products and Services in accord with the terms of this Agreement for actual
and reasonable expenses incurred by Supplier for work in process up to and including the date of
termination and Supplier using reasonable efforts to mitigate Buyer’s liability under this
Subsection.. .



b) Upon termination, in accordance with Buyer’s written direction, Supplier will immediately:




1. cease work;




2. prepare and submit to Buyer an itemization of all completed and partially completed Products
and Services;




3. deliver to Buyer Products satisfactorily completed up to the date of termination at the
agreed upon Prices in the relevant SOW and/or WA; and




4. deliver upon request any work in process.



15.0 General



15.1 Amendments



This Agreement may only be amended by a writing specifically referencing this Agreement which has
been signed by authorized representatives of the parties.



15.2 Assignment



Neither party will assign their rights or delegate or subcontract their duties under this Agreement
to third parties or Affiliates without the prior written consent of the other party, such consent
not to be withheld unreasonably, except that either party may assign this Agreement in conjunction
with the sale of a substantial part of its business utilizing this Agreement. Any unauthorized
assignment of this Agreement is void.



15.3 Choice of Law and Forum; Waiver of Jury Trial; Limitation of Action



This Agreement and the performance of transactions under this Agreement will be governed by the
laws of the country where the Buyer entering into the relevant agreement or PA is located, except:
(i) in Australia, this Agreement will be governed by the laws of the State or Territory in which
the transaction occurs; (ii) in the United Kingdom, this Agreement will be governed by the laws of
England; (iii) in Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia,
Former Yugoslav Republic of Macedonia, FR Yugoslavia, Georgia, Hungary, Kazakhstan, Kyrgyzstan,
Moldova, Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, and
Uzbekistan, this Agreement will be governed by the laws of Austria; (iv) in Estonia, Latvia, and
Lithuania, Finnish law will apply; (v) in Canada, the laws of the Province of Ontario govern this
Agreement; (vi) in the United States (including if any part of the transaction occurs within the
United States) and Puerto Rico, and People’s Republic of China, the laws of the State of New York
applicable to contracts executed in and performed entirely within that State govern this Agreement.
The United Nations Convention on Contracts for the International Sale of Goods does not apply. The
parties expressly waive any right to a jury trial regarding disputes related to this Agreement.
Unless otherwise provided by local law without the possibility of contractual waiver or limitation,
any legal or other action related to a breach of this Agreement must be commenced no later than two
(2) years from the date on which the cause of action arose.










					
	 	 	 	 	 
	Form Title: Voltaire Base Agreement
	 	Page 6 of 8
	 	Form Release: 8/98
	 	 	 	 	 
	Form Owner: Global Procurement
	 	 	 	Revision: 3/04






 









 





Agreement #4904RL1168




15.4 Communications




All communications between the parties regarding this Agreement will be conducted through the
parties’ representatives as specified in the relevant SOW. Supplier will use reasonable efforts to
participate in replenishment logistics programs presented by Buyer. All notices required in writing
under this Agreement will be made to the appropriate contact(s) listed in the relevant SOW and/or
WA and will be effective upon actual receipt. Notices may be transmitted electronically, by
registered or certified mail, or courier. All notices, with the exception of legal notices, may
also be provided by facsimile.



15.5 Counterparts



This Agreement may be signed in one or more counterparts, each of which will be deemed to be an
original and all of which when taken together will constitute the same agreement. Any copy of this
Agreement made by reliable means (for example, photocopy or facsimile) is considered an original.



15.6 Exchange of Information



All information exchanged is non confidential. If either party requires the exchange of
confidential information, it will be made under a separate signed confidentiality agreement between
the parties. The parties will not publicize the terms of this Agreement, or the relationship, in
any advertising, marketing or promotional materials without prior written consent of the other
party except as may be required by law, provided the party publicizing obtains any confidentiality
treatment available. Supplier will use information regarding this Agreement only in the
performance of this Agreement. For any business personal information relating to Supplier Personnel
that Supplier provides to Buyer, Supplier has obtained the agreement of the Supplier Personnel to
release the information to Buyer and to allow Buyer to use such information in connection with this
Agreement. Notwithstanding the foregoing, each party agrees that confidential information may be
exchanged in accordance with and pursuant to that certain Confidential Disclosure Agreement
#4903ST0305, the terms and conditions of which are incorporated by this reference as if set forth
in full herein.



15.7 Freedom of Action



This Agreement is nonexclusive and either party may design, develop, manufacture, acquire or market
competitive products or services. Buyer will independently establish prices for resale of Products
or Services and is not obligated to announce or market any Products or Services and does not
guarantee the success of its marketing efforts, if any.



15.8 Force Majeure



Neither party will be in default or liable for any delay or failure to comply with this Agreement
due to any act beyond the control of the affected party, excluding labor disputes, provided such
party immediately notifies the other.



15.9 Obligations of Affiliates



Affiliates will acknowledge acceptance of the terms of this Agreement through the signing of a PA
before conducting any transaction under this Agreement.



15.10 Prior Communications and Order of Precedence



This Agreement replaces any prior oral or written agreements or other communication between the
parties with respect to the subject matter of this Agreement, excluding any confidential disclosure
agreements. In the event of any conflict or inconsistency in these documents, the order of
precedence will be:




	 	1.	 	the quantity, payment and delivery terms of the relevant WA;
	 
	 	2.	 	the relevant SOW;
	 
	 	3.	 	this Base Agreement; and
	 
	 	4.	 	the remaining terms of the relevant WA.





15.11 Record Keeping and Audit Rights



Supplier will maintain (and provide to Buyer upon request) relevant business and accounting records
to support invoices under this Agreement and proof of required permits and professional licenses,
for a period of time as required by local law, but not for less than three (3) years following
completion or termination of the relevant SOW and/or WA. All accounting records will be maintained
in accordance with generally accepted accounting principles.



15.12 Severability



If any term in this Agreement is found by competent judicial authority to be unenforceable in any
respect, the validity of the remainder of this Agreement will be unaffected, provided that such
unenforceability does not materially affect the parties’ rights under this Agreement.










					
	 	 	 	 	 
	Form Title: Voltaire Base Agreement
	 	Page 7 of 8
	 	Form Release: 8/98
	 	 	 	 	 
	Form  Owner: Global Procurement
	 	 	 	Revision: 3/04






 









 





Agreement #4904RL1168




15.13 Survival




The provisions set forth in the following Sections and Subsections of this Base Agreement will
survive after termination or expiration of this Agreement and will remain in effect until
fulfilled: “Taxes”, “Ongoing Warranties”, “Epidemic Defects”, “Warranty Redemption”, “Intellectual
Property”, “Supplier Liability for Third Party Claims”, “Limitation of Liability between Supplier
and Buyer”, “Record Keeping and Audit Rights”, “Choice of Law and Forum; Waiver of Jury Trial;
Limitation of Action”, “Exchange of Information”, and “Prior Communications and Order of
Precedence”.



15.14 Waiver



An effective waiver under this Agreement must be in writing signed by the party waiving its right.
A waiver by either party of any instance of the other party’s noncompliance with any obligation or
responsibility under this Agreement will not be deemed a waiver of subsequent instances.




	 	 	 	 	 	 
	 

	 	 	 	 	 
	ACCEPTED AND AGREED TO:

	 	 	 	ACCEPTED AND AGREED TO:	 
	INTERNATIONAL BUSINESS MACHINES CORPORATION

	 	 	 	VOLTAIRE, INC.	 
	 
	 	 	 	 	 
	By: /s/ Craig A. Bloszinsky   10/14/04

	 	 	 	By: /s/ Mark E. Favreau   10/12/04	 
	 

	 	 	 	 	 
	Buyer Signature                 Date

	 	 	 	Supplier Signature                 Date	 
	Craig A. Bloszinsky	 	 	 	Mark E. Favreau	 
	 

	 	 	 	 	 
	Printed Name

	 	 	 	Printed Name	 
	Director Electronic Comp. Proc.	 	 	 	Executive Vice
President & General Manager	 
	 

	 	 	 	 	 
	Title & Organization

	 	 	 	Title & Organization	 
	 
	 	 	 	 	 
	 

	 	 	 	 	 
	Buyer Address:

	 	 	 	Supplier Address:	 
	3039 Cornwallis Road 

RTP, NC 27709

	 	 	 	6 Fortune Drive, 3rd Floor

Billerica, MA 01821-3917 USA	 






					
	 	 	 	 	 
	Form Title: Voltaire Base Agreement
	 	Page 8 of 8
	 	Form Release: 8/98
	 	 	 	 	 
	Form Owner: Global Procurement
	 	 	 	Revision: 3/04