EX-10.11



 





Exhibit 10.11




HEWLETT-PACKARD COMPANY




AGREEMENT NUMBER XXXX-XXXXXX



This Short Form Product Purchase Agreement (“Agreement”) is made and entered into as of the
8th day of October, 2004, (the “Effective Date”) by and between Hewlett-Packard Company (“HP”), a
Delaware Corporation having its principal place of business at 3000 Hanover Street, Palo Alto,
California 94304, and Voltaire, Inc. (“Supplier”), having a principal place of business at 6
Fortune Drive, Billerica, MA 01821; herein collectively referred to as the “Parties”.





	1.	 	Purpose
	 
	 	 	The products (“Products”) to be purchased hereunder are set forth on Exhibit A attached
hereto. Nothing in this Agreement obligates HP to purchase any minimum quantity of
Products. This Agreement, including HP’s “ORDER TERMS AND CONDITIONS, which is attached
hereto as Exhibit B, establishes the minimum terms and conditions that shall apply to any
purchase of Products made by either HP, or on HP’s behalf, by any other HP authorized third
party manufacturing or servicing higher level assemblies for HP. Any Order or
Acknowledgement or other legally binding volume commitment for Product which is entered
during the Term will remain governed by this Agreement notwithstanding expiration or
termination of this Agreement for any reason.
	 
	2.	 	Definitions. As used in this Agreement and any attached Exhibits, and in addition to other
terms elsewhere defined in this Agreement, each of the following terms has the indicated
meanings:






“Accepted Order” means an Order as to which Supplier has issued its Acknowledgment accepting
the Order or which is deemed accepted as set forth in Section 6.3 or which otherwise
constitutes a contract under Applicable Law, is legally binding or legally enforceable.




“Acknowledgment” means a written or electronic acknowledgment or confirmation issued by
Supplier in response to and following Supplier’s receipt of an Order issued by HP or an
Eligible Purchaser to Supplier for Delivery of Product.




“Affiliate” means an entity whose voting shares are owned less than fifty percent (50%), but
at least ten percent (10%), by a party to this Agreement and which is not controlled by, or
under common control with, a party to this Agreement as its Subsidiary.




“Applicable Law” means all constitutions, laws, statutes, codes, ordinances, orders,
judgments, decrees, injunctions, rules, regulations, permits and legally binding requirements
of all federal, state and local governmental authorities applicable to any party’s performance
under this Agreement.




“Business Day” (whether initial letters are capitalized or not) means a Day other than a
Saturday, Sunday or a Day on which U.S. commercial banks in California, or, if different,
commercial banking institutions in the location at which performance of an act or obligation
under this Agreement is to occur, are closed or required to close under Applicable Law.




“Confidential Information” has the meaning set forth in Section 15.1 of Exhibit B.




“Current Version” shall be platform specific and shall mean the version of the Product which
his included in HP software that is currently in production and generally available to
Customers. Example: If version 6.2 is replaced by version 6.3 and version 6.3 is included in
the HP software currently in production and generally available to Customers, then version 6.3
is the Current Version.




“Day” (whether initial letter is capitalized or not) means a calendar day and includes
Saturdays, Sundays and holidays, except that, in the event that an obligation to be performed
under this Agreement falls due on a day other than a Business Day, the obligation will be
deemed due on the first Business Day thereafter.




“Delaying Cause” has the meaning set forth in Section 14.1 of Exhibit B.




“Delivery” or “Deliver” means, in accordance with an Accepted Order and this Agreement,
delivery to common carrier for shipment or shipment and arrival of Product at the receiving
area, as HP or an Eligible Purchaser may designate, and Supplier may agree, from time to time
during the Term.




“Delivery Date” means the date specified in an Accepted Order for the Delivery of Product by
Supplier to the destination required under the Accepted Order.




“Discontinued Product” has the meaning set forth in Section 9.1 of Exhibit B.




			
	 	 	 
	Hewlett-Packard Company
	 	Page 1 of 46








 









 






“Documentation” means the technical documentation that Supplier will provide with Product from
time to time during the Term and to the extent HP may reasonably request and show need for
access.




“Eligible Purchaser” means HP Subsidiaries and HP Affiliates and, as may be mutually agreed in
writing by Supplier and HP, HP Contractors and other third parties.




“Emergency Order” has the meaning set forth in Section 6.4




“Engineering Change” has the meaning set forth in Section 4.3 of Exhibit B.




“Enhancement” shall mean a request for an enhancement for improved function or feature of the
Product.




“Epidemic Failure” has the meaning set forth in Section 6.9 of Exhibit B.




“Error” shall mean a demonstrable instance of adverse and incorrect operation of a Product
that causes an impact to the HP Customer’s ability to conduct business.




“Failure” means a deviation from the Specification as determined by visual inspections and/or
mechanical or electrical testing. Failures will be verified using diagnostic tools and
processes approved by HP and/or its Eligible Purchases. Failures may be discovered during
qualification, manufacturing, final assembly or as a result of returns from HP, its Eligible
Purchasers or HP Customers.




“Forecast” means HP’s non-binding estimate of purchases of Product over a one (1) year period,
or such other period as may be designated by the parties.




“HP Contractor” or “Contractor” means any third party which performs work for HP or HP
Subsidiaries or Affiliates and which requires Product from Supplier. HP Contractors are
independent contractors of HP or its Subsidiaries or Affiliates and are not legally related to
HP or its Subsidiaries or Affiliates as agent, employee, partner, joint venturer or other
manner.




“HP Products” means the HP products or systems that include or incorporate Product and that
will be marketed and sold to end-user customers by HP or HP Subsidiaries or Affiliates and its
and their resellers.




“HP Property” means all property including without limitation models, tools, equipment, copies
of designs and documentation and other materials that may be furnished to Supplier by HP or on
HP’s behalf or separately paid for by HP for use by Supplier in connection with this Agreement
or any Order.




“HP Warehouse” means any facility which is owned, leased, rented or use of which is otherwise
arranged by HP where HP inventory, including raw material, components and work-in-process, may
be stored.




“Indemnitee” has the meaning set forth in Section 13.1 of Exhibit B.




“Infringing Product’ has the meaning set forth in Section 13.3 of Exhibit B.




“Intellectual Property Rights” means any ideas, whether or not patentable, inventions,
discoveries, processes, works of authorship, marks, names, know-how, and any and all rights in
such materials on a worldwide basis, including any rights in patents, inventor’s certificates,
utility models, copyrights, moral rights, trade secrets, mask works, trade names and marks and
other analogous rights.




“IP Claim” has the meaning set forth in Section 13.1.6 of Exhibit B.




“Lead Time” means the time between the date an Order is accepted and the Delivery Date.




“Mark” (whether initial letter is capitalized or not) means any trademark, service mark,
trademark and service mark application, trade dress, trade name, logo, insignia, symbol,
design or other marking identifying a party or its products.




“Month” and “year” mean calendar month and year.




“Non-cancelable Order” means an Accepted Order that due to special circumstances (e.g.,
ordered quantities or item of Product) or agreement of the parties may not be rescheduled or
canceled by HP. Any Accepted Order for Unique Product will be deemed to be a Non-cancelable
Order.




			
	 	 	 
	Hewlett-Packard Company
	 	Page 2 of 46







 









 






“Non-SMI” has the meaning set forth in Section 6.6.




“Order” means a written or electronic purchase order or release issued by HP or an Eligible
Purchaser to Supplier for Delivery of Product.




“Personal Data” shall have the meaning set forth in Section 12.12 of Exhibit B.




“Product” or “Products” includes any goods and services set forth in Exhibit A, Parts and all
related Documentation and other deliverables provided pursuant to this Agreement. “Parts”
means the spares, replacements, components and other items that may be supplied in conjunction
with or as additions to Product.




“Return Materials Authorization” or “RMA” has the meaning set forth in Section 7.3 of Exhibit
B.




“Schematics” means construction and assembly drawings, photo-tooling for PCBs, and codes,
software or firmware for custom or proprietary components.




“Services” has the meaning set forth in Exhibit C.




“Shipment” (whether initial letter is capitalized or not) means the date of shipment from
Supplier’s facility, or in the case of Product shipped from a third party warehouse, the date
of shipment from the third party warehouse to HP or an Eligible Purchaser’s facility.




“Software” means one or more programs capable of operating on a controller, processor or other
device or hardware product. Software may be a separate Product, included with another Product
or fixed in a device or hardware product and not removable in normal operation.




“Specifications” means Supplier’s standard specifications for Product, the technical and
functional requirements for Product set forth in Exhibit A, any Unique Specification and any
other requirements which may be attached hereto or referred to herein or agreed to by the
parties or which may be published in Supplier’s manuals and technical data sheets for Product
in effect on the date Supplier Delivers the corresponding Order.




“Subcontractor” means any third party, under contract or other arrangement with Supplier, with
responsibility for supply of components or parts for Product, Support of Product, or for
assembly, storage or configuration of Product.




“Subsidiary” means an entity controlled by, or under common control with, a party to this
Agreement, through ownership or control of fifty percent (50%) or greater of the voting power
of the shares or other means of ownership or control, for as long as such ownership or control
continues to exist.




“Supplier Managed Inventory” or “SMI” means a program or process for Supplier’s inventory to
be stored at Hubs or within Supplier’s designated area within an HP Warehouse.




“Support” means technical support and other Services as set forth in Exhibit C, standard
services Supplier customarily provides for Product, or substantial equivalent, and services
for Product mutually agreed to be provided by Supplier to HP; provided that if Product
includes or constitutes Software, Support also includes fixes, updates and upgrades, unless
otherwise agreed.




“Technical Information” means Supplier’s manufacturing information and technology to produce
Product and provide Support, including without limitation: (i) specifications, software,
schematics, designs, drawings or other materials pertinent to the most current revision level
of manufacturing of Product; (ii) copies of all inspection, manufacturing, test and quality
control procedures and any other work processes; (iii) jig, fixture and tooling designs; (iv)
supplier history files; (v) support documentation; and (vi) any additional technical
information or materials that may be agreed to by the parties.




“Term” has the meaning set forth in Section 3.




“Unique Product” means Product that is unique in nature, customer-specific to HP and cannot be
resold by Supplier to customers other than HP without major modification.




“Unique Specification” means a specialized or particularized requirement of HP which is unique
to HP and which does not include industry standards or conventional requirements or guidelines
or Supplier’s own standards, requirements or guidelines.




			
	 	 	 
	Hewlett-Packard Company
	 	Page 3 of 46







 









 






	2.	 	Order of Precedence






This Agreement, inclusive of all Exhibits attached hereto and made a part hereof,
constitutes the entire agreement between the Parties with respect to the subject matter
hereof, and supersedes all prior understandings, communications and agreements whether
written or oral. Terms and conditions of this Agreement take precedence over the terms and
conditions of any other agreement between HP and Supplier covering the Products, including
but not limited to, HP’s Orders. All other terms and conditions of this Agreement and its
other Exhibits shall continue to apply as originally stated.




	3.	 	Term and Termination of the Agreement






This Agreement shall commence on the Effective Date and shall remain in effect, unless
sooner terminated in accordance with the provisions set forth herein, for an initial term
of twenty-four (24) months (the “Initial Term”). The Agreement shall automatically
renew and continue in effect beyond the Initial Term and each renewal term for an
additional term of twelve (12) months, until terminated as specified below. 




Except as otherwise provided in the Agreement, neither HP nor Supplier may terminate this
Agreement prior to the expiration of the Initial Term. Supplier may terminate the Agreement
thereafter by providing HP sixty (60) days prior written notice of termination. During such
sixty (60) day termination notice period, HP may issue Orders at the prices specified in this
Agreement for Products scheduled for delivery within six (6) months from the date of HP’s
receipt of notice of termination. Termination by Supplier or termination of the Initial Term
shall have no effect on Orders issued prior to the effective date of termination. Any Order
delivered after the effective date of termination shall be subject to all terms of this
Agreement.




Supplier or HP may terminate this Agreement (a) if the other party materially breaches a
provision of this Agreement and fails to cure such breach within forty-five (45) days after
receiving written notice of such breach from the non-breaching party, or (b) immediately upon
written notice, if the breaching party makes an assignment for the benefit of creditors, or a
receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of
the breaching party’s property, or seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding or such a proceeding is
instituted against the party and is not dismissed within ninety (90) days, or the party becomes
insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the
ordinary course




The provisions of Sections 2, 3, 5, 8 and 9, and this Section 3, of this Agreement, and Sections
6, 8.5, 12.5.7, 13, 15 and 21 of Exhibit B, shall survive any expiration or termination of this
Agreement.




Notwithstanding any termination of this Agreement, all licenses granted to end users for use of
the Software will survive subject to the terms and end user’s compliance with the applicable end
user license agreement.




	4.	 	Termination For Business Convenience






Notwithstanding the above, HP may terminate this Agreement and/or any Orders at any time
(subject to payment of amounts provided herein, but without liability for damages solely on
account of such termination) and without need to show cause upon ninety (90) days prior written
notice.




	5.	 	Notification






Any notices under this Agreement shall be in writing and shall be sent by United States
Postal Service, Certified Mail, Return Receipt Requested, postage prepaid or other receipt
verifiable delivery, and addressed as follows:



	 	 	 
	>If to HP:	 	>If to Supplier:
	Hewlett-Packard Company

	 	Voltaire, Inc.
	 
	 	 
	Elaine Carroll

	 	Mark Favreau
	Commodity Mgr., BCS Procurement

	 	EVP and GM North American Operations
	200 Forest Street

	 	6 Fortune Drive, Billerica, MA 01821
	Marlboro, MA 01752

	 	Billerica, MA 01821
	508-467-9815/508-467-3785/elaine.carroll@hp.com

	 	978.439.5454/978.439.5401/markf@voltaire.com







	6.	 	Orders






HP may order Product in one or more of the following ways: (a) by issuing an Order; (b)
by issuing a Blanket Purchase Order; or (c) according to any applicable SMI process. Only
an Order, which fully complies with the terms of this Agreement, can create a binding
obligation to purchase for HP. Each Order must be in writing (which includes electronic form).
A binding obligation to purchase by HP and to sell by the Supplier is created when the Order is
acknowledged and accepted by the Supplier as provided herein. Such obligation to purchase and
sell is limited to the Products and quantity covered by the applicable Order.




			
	 	 	 
	Hewlett-Packard Company
	 	Page 4 of 46







 









 






	 	6.1	 	Orders. Each sale and purchase of Product under this Agreement will be initiated by an
Order issued to Supplier by HP or Eligible Purchaser. Each Order will include quantity and
price, shipping destination, proposed delivery date and other instructions or requirements
pertinent to the Order. HP may schedule regular intervals for Deliveries by an Order
setting forth the intervals. This Agreement applies to all Orders for Product and all
acknowledgment of Orders whether or not the Order or acknowledgement refers to this
Agreement.
	 
	 	6.2	 	Blanket Purchase Orders. HP may issue a Blanket Purchase Order to indicate that it may
order the listed Products within the period covered by such Blanket Purchase Order.
Blanket Purchase Orders do not represent a commitment by HP to buy the volume indicated.
Blanket Purchase Orders will indicate the quantity, part number and revision level, if
applicable, of the Product. A Blanket Purchase Order will be used for fulfillment purposes
until the earlier of the expiration of such Blanket Purchase Order or depletion of the
quantity or dollar limit for the Products under such Blanket Purchase Order. Supplier will
support as commercially reasonable, all Forecasts it receives from HP that are associated
with Blanket Purchase Orders.
	 
	 	6.3	 	Order Acceptance and Acknowledgement. Each Order will be deemed to have been placed as
of date of issuance of the Order Acknowledgement by Supplier. Supplier will promptly
confirm to HP receipt of an Order electronically or through facsimile; provided that such
confirmation of receipt does not constitute an acceptance of the Order unless it expressly
so states. Within two (2) Business Days following receipt of the Order, Supplier will
issue an Acknowledgement, which accepts or rejects the Order; provided that if five (5)
Business Days after issuance of the Order HP has not received Supplier’s Acknowledgement,
the Order will be deemed accepted as issued. HP will use reasonable commercial efforts to
place Orders for Product within Forecasts and Lead Times and for Orders exceeding Forecast
or shortening Lead Time, Supplier will use reasonable efforts to fill such excess or
accommodate such shorter Lead Time. Unless otherwise expressly agreed by HP, Delivery must
be in strict conformity with Accepted Orders. On Time Delivery will be plus (+) three (3)
days early, zero (0) days late.
	 
	 	6.4	 	Emergency Orders. If HP deems it necessary, HP may issue Orders on an emergency basis
(“Emergency Order”). Subject to availability of Product, Supplier will use commercially
reasonable efforts to ship Emergency Orders to HP’s stipulated destination/s within one (1)
Business Day after the Acknowledgement by Supplier.
	 
	 	6.5	 	Lead Times. Lead Time for each item of Product will be negotiated by the parties
during the Term and reviewed quarterly. Either party may request a change in Lead Times at
any time, and any change announced by Supplier will apply unless otherwise agreed; provided
that Lead Times may not be materially lengthened on less than thirty (30) days prior
written notice. Product Lead Times are referenced in Exhibit A.
	 
	 	6.6	 	Inventory Requirements. HP may request Supplier to deliver Product either through a
non-Supplier Managed Inventory (“non-SMI”) process or to use an SMI process. There is no
inventory requirement under a non-SMI process. Use of an SMI process, whether with HP
Warehouse or otherwise, may require additional or different mutually agreeable terms and
conditions. Without limiting any of the obligations or liabilities of Supplier, Supplier
will maintain, at its own expense, as long as this Agreement is in effect, insurance
policies.
	 
	 	6.7	 	Supplier agrees that all of HP’s subsidiaries, affiliates, contractors, and other third
parties wherever located, may purchase Products pursuant to the terms of this Agreement,
provided that:






	 	6.7.1	 	Nothing herein makes HP liable or otherwise responsible for any purchases or
obligations of any HP subsidiary, affiliate, contractor, or other third party;
	 
	 	6.7.2	 	Purchases by any such HP subsidiary, affiliate, contractor or other third
party are for the production of HP assemblies or are otherwise related to the support
of HP assemblies; and
	 
	 	6.7.3	 	As may reasonably be requested by Supplier, HP will provide reasonable
confirmation that such purchases by any HP subsidiary, affiliate, contractor or other
third party are intended for HP assemblies; and
	 
	 	6.7.4	 	Such HP contractor or third party agrees (in a writing delivered to Supplier)
to be bound by all of HP’s obligations hereunder.






	 	6.8	 	Purchase Reports. Within thirty (30) days after close of each HP fiscal quarter,
Supplier will provide HP with a report which details purchases of Product by HP by item,
quantity and purchase location, showing total quantities shipped, total dollars
invoiced, returns, percent of on-time and on-quality orders and other such information as HP
and Supplier may mutually determine is appropriate. Reports will be sent to
HP’s respective
purchase locations and a report detailing HP’s total purchases will be sent to HP’s primary
contact set forth in Section 5 above.






			
	 	 	 
	Hewlett-Packard Company
	 	Page 5 of 46







 









 






	 	6.9	 	Forms. For convenience, HP may use its preprinted forms to order Products, and
Supplier may use its preprinted forms to confirm same; provided, however,
the provisions of this Agreement, including the Exhibits, shall govern the transactions
contemplated hereby, and any preprinted or other provision contained in any such forms
(other than Product identifications, quantities, price terms and delivery terms which are
consistent with this Agreement) shall have no force or effect under this Agreement. No
order shall be binding upon Supplier until Supplier confirms in writing its acceptance
(including without limitation, credit approval) except as provided in Section 6.3.
	 
	 	6.10	 	Forecasts. On a monthly basis, and with reasonable efforts by no later than the fifth
day of every calendar month, HP will provide Supplier with non-binding, good faith
forecasts (in a format reasonably acceptable to Supplier) of its (including its
subsidiaries, affiliates and contractors) anticipated requirements for each Product and
delivery dates over the following six (6) month period.






	7.	 	Pricing and Delivery






	 	7.1.	 	To the extent specified herein and permitted by applicable law, Supplier shall offer HP
the lowest prices and most favorable terms that it affords, or intends to afford, any of
its other customers for the same Products (in comparable volumes and purchase commitments).
Supplier agrees to provide HP notice of any agreement which it enters into with that
provides more favorable pricing to a similarly situated third party within thirty (30) days
of the close of the agreement with the third party. HP may, at its sole option, adopt the
more favorable pricing provided that HP also adopts all additional restrictions,
obligations, licenses and other applicable terms and conditions specified in such
agreement.
	 
	 	7.2.	 	Prices and freight/delivery terms shall be in accordance with Exhibit A. Title and
risk of loss shall pass to HP upon delivery of product(s) to HP’s designated location or
its carrier as required in Exhibit B. If during the Term changed prices are put into
effect by mutual agreement of HP and Supplier or reduced prices are otherwise put into
effect by Supplier, such prices shall apply to all Orders issued by HP after the effective
date of such new prices and to all Products scheduled but unshipped against open Orders.
All Products under this Agreement shall be subject to pricing adjustments occurring
regularly at periodic three-month intervals (quarterly) for the duration of the Term/s of
this Agreement. Supplier and HP agree to initiate in good faith pricing discussions
beginning upon the final month of the current quarter for pricing for each such successive
fiscal quarter. The exact percentage of the change, if any, will be mutually agreed by the
parties and be based on market conditions and other relevant factors to the business model
as jointly determined by the parties.






	8.	 	Payment
	 
	 	 	Payment for Products by HP shall be due net * ( * ) days after the
later of (i) delivery of the applicable Products or (ii) receipt by HP of an appropriate invoice
from Supplier. If HP fails to make any payment when due, Supplier shall have the right to take
whatever action it deems appropriate (including without limitation, immediately stopping
deliveries under any or all then current orders, refusing further orders, requiring payment in
full upon order, or terminating this Agreement as provided herein), and taking any such action
shall not foreclose any other right that Supplier may have as a consequence of late payment. .
	 
	9.	 	Warranty Period
	 
	 	 	For a period of * ( * ) months from the date of HP’s receipt of new
Products delivered hereunder (or such other period specified in Exhibit B), Supplier offers
the warranties and remedies set forth in the attached Exhibit B. The warranty for replaced
or repaired Products will be the same as for new Products and begin on the date of receipt
of the replaced or repaired Products by HP and continue for the longer of thirty (30) days
and the remainder of the original warranty period.
	 
	10.	 	Competitive Offers






	 	10.1.	 	Competitive Pricing. Supplier will maintain competitive pricing for HP throughout the
Term.
	 
	 	10.2.	 	Competitive Offerings. At any time during the Term, unless otherwise agreed, HP may
notify Supplier that HP has received a bona fide offer to deliver Product, or a substantial
equivalent, under written contract in approximately comparable volume, mix, service level
and duration of committed sale as the undelivered or unperformed portion of any committed
volume under this Agreement at pricing lower than pricing in effect under this Agreement or
at lower total cost to HP. If within fifteen (15) days of the date of such notice,
Supplier does not reduce its pricing sufficiently to meet the terms of such offer and
advise HP of such reduction, HP may purchase from such offer or any or all of the
undelivered or unperformed portion of any committed volume under an Acknowledged and
Accepted Order, in accordance with the Flexibility Schedule in Exhibit E. Anything in the
foregoing to the contrary notwithstanding, this provision will not apply to (i) any
Non-cancelable Order for Product or (ii) any Accepted Order arising under Section 9 of
Exhibit B or otherwise entered as a lifetime-buy at end of Product cycle.
	 
	 	10.3.	 	New Product Offerings. At any time during the Term HP may notify Supplier that HP has
received a bona fide offer to deliver goods which have superior technical specifications or
superior in-use attributes or capabilities as compared with Product, and to the extent it
deems itself able to do so, HP may provide specifics so that Supplier may revise
specifications for Product or otherwise offer such substitute goods to HP hereunder. If
within a commercially reasonable time after such notice, Supplier is unable to sell or
fails to offer to sell HP Products with revised specifications (which are acceptable to HP)
or such substitute goods at competitive






			
	 	 	 
	Hewlett-Packard Company
	 	Page 6 of 46







 









 






	 	 	 	pricing and otherwise meeting the terms of such
offer, HP many cancel, by written notice received no less than thirty (30) days in advance
of the applicable Delivery Date, any or all of the undelivered or unperformed portion of
any Accepted Order in accordance with this Agreement (including without limitation, any
charge pursuant Section 4.2 of Exhibit B). The quantity so purchased will be deleted from
HP’s purchase requirements.






	11.	 	Miscellaneous
	 
	 	 	No amendment to or modification of this Agreement shall be valid or binding unless in
writing and executed by an authorized representative of HP and Supplier.
	 
	12.	 	Exhibits
	 
	 	 	All exhibits attached to this Agreement shall be deemed part of this Agreement and
incorporated by reference. The term “Agreement” includes the exhibits listed in this Section
12. Terms defined in this Agreement and used in any exhibit shall have the same meaning in the
exhibit as in this Agreement. Exhibit B contains among other provisions, limitation of
liability, governing provisions, and indemnification among other terms and conditions.
	 
	 	 	The following exhibits(s) are hereby made a part of this Agreement:





	 	 	 
	Exhibit	 	Description
	A

	 	Products and Pricing
	B

	 	HP Order Terms And Conditions
	C

	 	Service and Support Requirements
	D

	 	Software and Documentation Warranty
	E

	 	Flexibility Agreement
	F

	 	Quality Assurance Requirements
	G

	 	Supplier Social & Environmental Responsibility Agreement
	H

	 	Product Specifications
	I

	 	Supplier’s Software License Agreement
	J

	 	HP Software License Terms
	K

	 	Third Party Code and Licenses Included in Software





This Agreement constitutes the entire understanding and agreement between the Parties with respect
to the subject matter hereof. It shall not be varied except by an instrument in writing of
subsequent date duly executed by authorized representatives of the Parties.

IN WITNESS WHEREOF, the Parties, intending to be legally bound, have executed this Agreement by
their respective authorized representatives as of the Effective Date.




	 	 	 	 	 	 	 
	APPROVED AND AGREED TO:

	 	 	 	APPROVED AND AGREED TO:	 	 
	 
	 	 	 	 	 	 
	Voltaire,
Inc.

	 	 	 	Hewlett-Packard
Company	 	 
	(Supplier)

	 	 	 	(HP)	 	 
	 
	 	 	 	 	 	 
	/s/ Mark E. Favreau

	 	 	 	/s/ Sue Oliveira
	 	 
	 

	 	 	 	 	 	 
	(Signature)

	 	 	 	(Signature)	 	 
	 
	 	 	 	 	 	 
	Mark E. Favreau

	 	 	 	Sue Oliveira	 	 
	 

	 	 	 	 	 	 
	(Typed Name)

	 	 	 	(Typed Name)	 	 
	 
	 	 	 	 	 	 
	Executive Vice-President & General Manager

	 	 	 	Director, BCS Procurement	 	 
	 

	 	 	 	 	 	 
	(Title)

	 	 	 	(Title)	 	 






			
	 	 	 
	Hewlett-Packard Company
	 	Page 7 of 46








 









 






Exhibit A

To Agreement No. XXXX-XXXXXX




Products and Pricing




	 	 	 	 	 	 	 	 	 	 	 
	Item	 	 	 	 	 	 	 	 	 	Lead-time
	No.	 	HP Part No.	 	Supplier Part No.	 	Product Description	 	Unit Price	 	(Days)
	1

	 	376165-B21
	 	501S30010
	 	ISR9024, IB switch router,
externally managed
	 	*
	 	*
	2

	 	376166-B21
	 	501S30020
	 	ISR9024M , IB switch router,
internally managed
	 	*
	 	*
	3

	 	376167-B21
	 	501S30030
	 	ISR9024-12, IB switch router w/ 4
upper 12X ports externally managed
	 	*
	 	*
	4

	 	376168-B21
	 	501S30040
	 	ISR9024M-12, IB switch router w/ 4
upper 12X ports internally managed
	 	*
	 	*
	5

	 	376169-B21
	 	501S30001
	 	Redundant power supply for ISR 9024
	 	*
	 	*
	6

	 	376170-B21
	 	501S41000
	 	ISR9288 chassis containing 2 12
connections fabric boards, 1
management board w/ VFM and
Voltaire Vision sw pkgs, 2 fan
units, rear panel control, 1 power
supply unit
	 	*
	 	*
	7

	 	376171-B21
	 	501D40030
	 	sLB-24, 24 4X IB ports modular
line board
	 	*
	 	*
	8

	 	376172-B21
	 	501D30040
	 	sRBD, Router blade drawer
	 	*
	 	*
	9

	 	376173-B21
	 	501D19100
	 	IPR, IB to IP router blade (IB
form factor, 4 GbE SMP ports)
	 	*
	 	*
	10

	 	376174-B21
	 	501S18100
	 	FCR IB to FC router blade (IB
form factor, 4 FC ports)
	 	*
	 	*
	11

	 	376175-B21
	 	501D40050
	 	sFB-12, 12 connections fabric board
	 	*
	 	*
	12

	 	376176-B21
	 	501D40080
	 	sMB, Additional management board
	 	*
	 	*
	13

	 	376177-B21
	 	501D40100
	 	sPSU, Additional power supply unit
for ISR9288
	 	*
	 	*
	14

	 	 	 	501S12319
	 	HCA 400 (PCI-X) w/ 2 4X IB ports,
128MB RAM & Linux open source MPI
pkg with IpoIB & SDP support
	 	*
	 	*
	15

	 	 	 	501S12317
	 	HCA 400EX (8X PCI-Express) w/ 2
4X IB ports, 128MB RAM & Linux
open source MPI pkg with IpoIB &
SDP support
	 	*
	 	*







			
	 	 	 
	Hewlett-Packard Company
	 	Page 8 of 46






 




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







 









 








Exhibit B

To Agreement No. XXXX-XXXXXX




HP Order Terms and Conditions





	1.	 	ENTIRE AGREEMENT.






	 	1.1.	 	Terms and Conditions. The terms and conditions set forth below together with
those appearing on the face of this Order, any attachments hereto and any document or other
writing which is incorporated herein by reference, including the main body of the Agreement
(collectively, the “Order”) constitute the complete and exclusive agreement between HP and
the party identified in the “issued to” box on the face of this Order (“Supplier”). All
references in this Order to “HP” shall mean the HP entity issuing the Order. In the event
of a conflict, difference or inconsistency between a provision of this Order and a
provision contained in a written purchase agreement or a professional services agreement,
the subject of which agreement is the products and/or services being purchased under this
Order respectively, the provision contained in such purchase agreement or professional
services agreement shall govern. Capitalized terms not defined herein shall have the
meaning assigned to it in the main Agreement.
	 
	 	1.2.	 	Acceptance and Modification. This Order can be accepted only upon the
provisions expressed herein. HP objects to any additional or different terms or conditions,
whether or not material, contained in any acknowledgement or confirmation of Order.
Supplier may accept this Order by acknowledging or confirming it, commencing performance or
other means manifesting assent to be bound. No modification of this Order shall be binding
on either party unless in writing and signed by an authorized representative of each party.






	2.	 	PRICES AND INVOICES.






	 	2.1.	 	Price. HP agrees to purchase and pay Supplier for, and Supplier shall sell to
HP, Products and/or Services (“Services”) shown on the face of this Order at the prices
specified. Except as otherwise provided in this Order, such prices are exclusive of
applicable freight charges and duties. As more specifically described in Section 7.1 of the
Agreement, such prices are not in excess of the lowest prices charged by Supplier to other
similarly situated customers for similar quantities of Products or Services of like kind
and quality.
	 
	 	2.2.	 	Taxes. HP shall be responsible for all taxes, duties, tariffs, levies and
similar assessments with respect to payments made under this Order, except for taxes
measured by Supplier’s net income or assets, business and occupation taxes, and legally
required withholding taxes. Where applicable, Supplier shall invoice HP for such taxes, in
a form as to allow HP to recover these taxes as appropriate. HP shall include such taxes
with payment or provide Supplier with the appropriate documentation to support exemption
from such tax.
	 
	 	2.3.	 	Payment. Payment for Products and/or Services by HP shall be due * ( * ) days
after the later to occur of receipt by HP of: (i) an appropriate invoice from Supplier or
(ii) delivery of the corresponding Products and/or Services. HP may deduct from its
payment the amount of any credits issued by Voltaire under this Agreement.
	 
	 	2.4.	 	Not Acceptance. Payment by HP will not constitute acceptance of Products and/or
Services, nor impair HP’s right to inspect Products and/or Services, or invoke any of its
remedies.
	 
	 	2.5.	 	Forecasts. Any forecasts provided by HP are only an accommodation to Supplier,
and shall not constitute a commitment of any type by HP.






	3.	 	SHIPMENT AND DELIVERY.






	 	3.1.	 	Prospective Failure. Supplier shall give HP notice of any prospective failure
to ship Products or provide Services on the delivery date specified by HP and confirmed in
Supplier’s acknowledgment (the “Delivery Date”).
	 
	 	3.2.	 	Portion of Products Available. If only a portion of Products is available for
shipment to meet the Delivery Date, Supplier shall promptly notify HP and ship the
available Products unless directed by HP to reschedule shipment. If Supplier ships Products
by a method other than as specified in this Order, Supplier shall pay any resulting
increase in the cost of freight incurred over that which would have been incurred had
Supplier complied with HP’s shipping instructions.
	 
	 	3.3.	 	Portion of Services Performed. If only a portion of the Services can be
performed on the Delivery Date, Supplier shall promptly notify HP and perform such Services
unless directed by HP to reschedule performance.
	 
	 	3.4.	 	Untimely Shipment. If, due to Supplier’s failure to timely ship Products, the
specified method of transportation would not permit Supplier to meet the Delivery Date, the
Products affected shall be shipped by air transportation or other expedient means
acceptable to HP. Supplier shall pay for any resulting increase in the cost of freight
incurred over that which would have been
incurred had Supplier shipped Products in a timely fashion by the method of transportation
specified by HP.










 




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






			
	 	 	 
	Hewlett-Packard Company
	 	Page 9 of 46







 









 






	 	3.5.	 	Early Delivery. If Products are delivered more than three (3) business days
prior to the Delivery Date, HP may either return Products or delay processing the
corresponding invoice until the Delivery Date.
	 
	 	3.6.	 	Over Shipment. If Supplier makes any shipment that is in excess of the quantity
specified in the Order, HP may return excess Products.
	 
	 	3.7.	 	Cost and Expenses. Supplier shall be responsible for all costs and expenses,
including transportation charges, associated with return of over shipments and early
shipments by HP to Supplier, provided HP has complied with the RMA procedure in Section 7.3
of this Exhibit B.
	 
	 	3.8.	 	Shipment Terms. Unless otherwise specified in this Order, shipments of Products
shall be FCA Supplier’s place of shipment/export Incoterms 2000. Title and risk of loss or
damage shall pass from Supplier to HP upon Supplier’s delivery of Products to the carrier
specified by HP. Supplier will bear all expenses related to packing, loading and delivery
of Products to the designated carrier, and loading of Products onto carrier’s conveyance.
	 
	 	3.9.	 	Protection of Products. Supplier shall preserve, package, handle, and pack
Products so as to protect Products from loss or damage, in conformance with good commercial
practice, HP specifications, government regulations, and other applicable requirements.
Regardless of when title and/or risk of loss passes from Supplier to HP, Supplier shall be
responsible for any loss or damage due to its failure to properly preserve, package,
handle, or pack Products. HP shall not be required to assert any claims for such loss or
damage against the carrier involved.
	 
	 	3.10.	 	Packing List. Each delivery of Products to HP shall include a packing list
that contains at least: (i) the Order number; (ii) the HP part number; (iii) the quantity
shipped; and (iv) the date of shipment. The information on the packing list must agree with
the information on the commercial invoice.






	4.	 	CHANGES.






	 	4.1.	 	Change or Cancellation. HP may, without charge except as provided herein,
change or cancel any portion of this Order including, without limitation, quantity
required, provided HP gives Supplier written notice received prior to the Delivery Date.
Anything in the foregoing to the contrary notwithstanding, this provision will not apply
(and HP may not make any change) in respect of (i) any Non-cancelable Order for Product or
(ii) any Accepted Order arising under Section 9 of Exhibit B or otherwise entered as a
lifetime-buy at end of Product cycle.
	 
	 	4.2.	 	Charges. The charges set forth in Exhibit E, if any, will apply depending on
how far in advance HP gives written notice of any change or cancellation, and whether or
not HP reschedules delivery of the same or greater quantity of Products in the near-term.
HP hereby agrees to promptly pay Supplier any such charges.
	 
	 	4.3.	 	Supplier Proposed Changes. Except as set forth in this Section, Supplier will
not make or incorporate in Product any of the following changes (each an “Engineering
Change” and collectively, “Engineering Changes”): 






	 	4.3.1.	 	Process and raw material changes, including chemical and raw material formulations,
component and material sourcing and quality statistical controls, which affects form,
fit, function or process; reference JETA EIA-JESD46-B and subsequent revisions.
	 
	 	4.3.2.	 	Design changes;
	 
	 	4.3.3.	 	Geographical relocation of manufacturing , test, upgrade or repair processes; or
	 
	 	4.3.4.	 	Process step discontinuances affecting electrical performance, mechanical form, fit,
function or performance, environmental compatibility, chemical characteristics, software
compatibility or the life, reliability or quality of Product.






	 	4.4.	 	Notice of Proposed Change. Supplier will notify HP in writing of any proposed
Engineering Change and will provide a reasonable number of evaluation samples and other
appropriate information as HP may reasonably request at least ninety (90) days prior to the
first proposed shipment of any Product involving an Engineering Change; provided that
Supplier may not provide Product involving an Engineering Change to HP for production usage
until HP has notified Supplier, in writing, that it has completed its qualification
testing. If any such change affects price, component obsolescence, quality performance or
delivery schedules of Product, an impact proposal prepared by Supplier shall be present to
HP for approval prior to Supplier initiating any change to Product. Supplier agrees to use
diligent efforts to provide Engineering Changes to HP in accord with the 90-day period
prescribed in this Section 4.4; provided, HP agrees such 90-day period shall not be a binding
requirement until the earlier of the parties mutual agreement or delivery of the
200th unit of Product to HP.






			
	 	 	 
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	 	Page 10 of 46







 









 






	 	 	 	If as a result of such an Engineering Change HP would be unable to utilize Product due to a
failure under HP’s qualifications, Supplier will continue to provide Product without the
Engineering change until Supplier and HP resolve any qualification issues. If a resolution
mutually recognized as such by both parties is not achieved within a reasonable time,
Supplier shall (unless Supplier and HP mutually agree that Supplier will continue to fulfill
Accepted Orders for Product) discontinue supply of Product without the Engineering Change,
whereupon HP may cancel all Accepted Orders for Product without cost or liability or
terminate this Agreement upon written notice to Supplier.
	 
	 	4.5.	 	HP Proposed Changes. HP may change HP-supplied drawings or designs or the
Specifications at any time prior to manufacture, effective upon notice to Supplier. If any
such change affects price, component obsolescence, quality performance or delivery
schedules of Product, an impact proposal prepared by Supplier shall be presented to HP for
approval prior to Supplier initiating any change. Supplier may make written claim for any
equitable adjustment related to such change within ninety (90) days from the date HP gives
notice to Supplier of such change.
	 
	 	4.6.	 	Safety Standard Changes. Supplier will immediately provide to HP oral notice,
to be followed by written notice, or email notice within one (1) business day of Supplier
having knowledge of the need for any upgrade, substitution or other change to a Product
that is required to make that product meet applicable safety standards or other
governmental statutes, rules, orders or regulations, even those that are not defined as
Engineering Changes in Section 4.1 above. Except as provided in the next sentence, all
affected Products already purchased by HP may, at HP’s election, either be returned to
Supplier for upgrade to current revisions or upgraded by Supplier or HP in the field
pursuant to the procedures outlined in Section 8.2 below. If a Product meets applicable
safety standards and other governmental requirements at the time of manufacture and
shipment to HP, HP and Supplier will work together to implement any subsequent upgrade,
substitution or other required change required in an equitable manner based on good faith
discussions between the parties; provided, if such upgrade, substitution or
change is mandated by law or regulation, then the parties shall share the costs in an
equitable manner. In all other instances, such upgrade, substitution or change required by
HP will be implemented at HP’s sole cost and such upgrade, substitution or change required
by Supplier will be implemented at Supplier’s sole cost.
	 
	 	4.7.	 	Technical Cooperation. Subject to the confidentiality provisions in Section 15
below, during the term of the Agreement, the parties will discuss architecture and explore
the possibilities for technically integrating Supplier and HP products. Each party will
designate a technical representative to lead these discussions as well as to address other
technical issues relating to the product enhancements and co-marketing alliance. To the
extent applicable to Products purchased by HP under this Agreement, Supplier agrees to
share and review with HP engineers detailed technical information for current and future
products (which such information shall not be unreasonably withheld or delayed), including,
but not limited to:






	 	4.7.1	 	Architecture diagrams;
	 
	 	4.7.2	 	Information necessary for HP to (i) understand the related architecture and to
develop test suites for resolution of potential problems, and (ii) to understand the
implications of such potential problems with the ability to implement configurations
efficiently;
	 
	 	4.7.3	 	Information necessary for HP to implement efficient configurations free of any significant performance problems;
	 
	 	4.7.4	 	Configurations and potential deadlock issues and resolution for such items, and;
	 
	 	4.7.5	 	New product features and Product roadmap.






	5.	 	QUALITY.






	 	5.1.	 	Quality System. Supplier will maintain a quality system that ensures
compliance with the Agreement and meets the following; Supplier:






	 	5.1.1	 	Currently is or will use reasonable efforts to become by 31 December 2005
certified to the applicable ISO 9000 series of standards for the Products and or spare
Parts provided to HP.
	 
	 	5.1.2	 	Maintains or will use reasonable efforts to maintain by 31 December 2005 to
implement and maintain a quality management system and manual that complies with the
applicable ISO9000 quality systems series of standards.
	 
	 	5.1.3	 	Has successfully passed HP’s supplier qualification audits. Supplier, upon
written request form HP, will provide to HP
copies of Supplier’s quality system documentation and supporting test documentation.
The parties will create and maintain a combined team to provide oversight of Supplier’s
quality systems to ensure Supplier’s compliance with this Agreement.






			
	 	 	 
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	 	Page 11 of 46







 









 












	 	5.2.	 	Product Holds. Supplier will, upon HP’s request, hold shipments of Product
until HP’s verification that the Product complies with HP’s specifications.
	 
	 	5.3.	 	HP’s Right to Inspect Facilities. With reasonable advance written notice, and
in compliance with Supplier’s security and safety requirements, HP and/or its designated
representative may inspect Supplier’s production and repair facilities (including but not
limited to Product raw materials, equipment associated manufacturing processes, test and
inspection data, reliability data, failure analysis data, corrective action data, and
training data) to ensure compliance with this Agreement. HP’s inspection, when accompanied
by a Supplier representative may be for any reason related to this Product or process,
including to assure Supplier’s compliance with HP’s requirements. Supplier will inform its
Subcontractors and suppliers of HP’s right to inspect their facilities and will use
reasonable efforts to secure such rights, each party to bear its own costs and expenses in
the performance of any such HP requested inspection. Any HP inspection of Supplier’s
Subcontractors’ and suppliers’ facilities will be accompanied by an authorized
representative of Supplier and all information observed or obtained as part of such
inspection shall be subject to the non-disclosure agreement between Supplier and HP.
	 
	 	5.4	 	Supplier Rating. HP periodically reviews its suppliers using a High
Performance Supplier Survey (HPSS), a rating system for technology, quality, supply, cost,
and business/risks. Supplier will participate in the review process.






	6.	 	WARRANTIES.
	 
	 	 	Subject to the other provisions of this Section 6, Supplier represents and warrants that all
Products and/or Services: (i) shall conform to the design criteria, specifications (including,
but not limited to, general specifications), descriptions, drawings, samples, and other
requirements referred to in this Order or provided by Supplier; (ii) shall be free from defects
in design, material, and workmanship; (iii) shall be free of all liens, encumbrances, and other
claims against title; (iv) do not infringe any patent, trademark, copyright or other
intellectual property right of a third party; (v) Products are new and do not contain any used
or reconditioned parts or materials; and (vi) all Services will be performed in a professional
manner consistent with the prevailing standards of care and skill.






	 	6.1.	 	Product Intellectual Property Warranties.
	 
	 	 	 	Supplier has no actual knowledge that any Product infringes any third party Intellectual
Property Rights.






	 	6.1.1.	 	Except as previously disclosed to HP, Supplier is not aware of any claim for violation
or infringement against any Product and Supplier will promptly notify HP if Supplier
becomes aware of any claim or receives actual notice of any such claim against Products.






	 	6.2.	 	IP Warranty. Unless otherwise specified under this Agreement, if the Supplier
breaches Section 6 (iv) or Section 6.1 intellectual property warranty, HP shall notify
Supplier in writing to provide a proposal in good faith within thirty (30) days of the
notice to cure the alleged breach. If the Supplier fails to provide such proposal in good
faith after the alleged breach and thirty (30) days notice, HP may immediately cancel any
unfilled Accepted Orders for the Infringing Product without liability, such remedies being
in addition to any other remedies provided by this Agreement. If a U.S. District Court or
any court worldwide adjudges that Product, or any item or part thereof, infringes any
United States Patent or any patent worldwide, irrespective of whether further right of
appeal lies available to Supplier, or if Product or use is enjoined at any stage of the
proceedings, any unfilled Accepted Orders for such Infringing Product will be canceled ipso
facto without liability for HP. In addition to the foregoing, HP’s exclusive remedy and
Supplier’s sole obligations shall be as set forth in Section 13.
	 
	 	6.3.	 	Warranty Periods. All warranties set forth this section 6 will survive any
inspection, delivery, acceptance or payment by HP. The warranties set forth in this
Section 6 are effective upon date the Product is delivered to HP, are continuing and will
remain in effect for the Supplier’s warranty period of * ( * ) months. All warranties in
Section 6.2 are effective at Delivery, are continuing and will remain in effect for a
period extending no less than * ( * ) years after the date an HP Product is discontinued.
Notwithstanding anything to the contrary, the warranty for the Software will be for ninety
(90) days commencing upon the date such Software is Delivered to HP and the warranty for
the hardware will be for * ( * ) months commencing upon the date such hardware is
delivered to HP.
	 
	 	6.4.	 	Software and Documentation Warranty. If Product includes or constitutes
Software, Supplier provides additional warranties of substantial conformance with
applicable specifications, and warrant Software will execute its programming instructions
when property installed, as set forth in Exhibit D.
	 
	 	6.5.	 	Compliance with Applicable Law. Supplier and HP warrant that it will comply
with Applicable Law in its performance under this Agreement.
	 
	 	6.6.	 	Warranty Exclusions. The warranties set forth in this Section 6 will not apply
to any Product to the extent such Product (i) have been improperly installed, or have been
repaired, altered or otherwise modified (other than by Supplier or Supplier’s authorized
Subcontractors), (ii) have been subjected to misuse, abuse, negligence or accident, (iii)
have been used in a manner contrary to








 




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






			
	 	 	 
	Hewlett-Packard Company
	 	Page 12 of 46







 









 






	 	 	 	Specifications or Supplier’s written instructions or
Documentation or industry standard practice, (iv) are comprised of materials provided or a
design stipulated by HP and not approved by Supplier in writing or (v) are used Product,
and do not cover normal wear and tear. Supplier shall not be responsible for any data or
other information contained in any Product returned for warranty service (such as, for
example, any Product configuration settings).
	 
	 	6.7.	 	Survival of Warranties. All warranties specified in Section 5.2 shall: (i)
survive any inspection, delivery, acceptance, or payment by HP (ii) run to HP and its
successors, assigns, and customers.
	 
	 	6.8.	 	Epidemic Failure Warranty. In addition to the warranties specified above,
Seller warrants all Products against Epidemic Failure for a period of three years after
acceptance of that Product by HP. Epidemic Failure means the occurrence of the same
manufacturing failure of the Product to meet the Specifications in 15% of HCA Products and
20% of Switch Products, within a three (3) month timeframe or within a specified date code
population of such Products.
	 
	 	 	 	If a Product exhibits an Epidemic Failure, HP may select the following remedy at its
discretion: Supplier will provide HP, not later than five (5) Business Days following
discovery of the Epidemic Failure (or other timeframe as mutually agreed upon, a root cause
analysis and corrective action plan. Hp will make available information and assistance
reasonably required to enable the Supplier to conduct its root cause analysis and provide
its corrective action report. Once HP approves the report, Supplier will incorporate the
corrective action in appropriate future Products.
	 
	 	6.9.	 	Supplier Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE
PRODUCTS, DOCUMENTATION AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND
SUPPLIER MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING PRODUCT INCLUDING
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY
COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.






	7.	 	NON-COMPLYING PRODUCTS AND/OR SERVICES.






	 	7.1.	 	Non-Compliance. If any Products or Services are defective or otherwise not in
conformity with the requirements of an Order (“Non-Complying Products” and “Non-Complying
Services”, respectively), HP may at its election: (i) return the Non-Complying Products for
repair or replacement at Supplier’s expense as specified herein; (ii) after giving written
notice to Supplier (specifying the Non-Complying Products in detail) and obtaining
Supplier’s written concurrence, repair the Non-Complying Products and recover HP’s
reasonable expenses of repair; or (iii) require Supplier to re-perform the Services at
Supplier’s expense or refund the amount paid for such Services. Any Products or Services
repaired or furnished in replacement shall, from the date of delivery of such corrected or
replaced Products or Services, be subject to the provisions of Section 6 for a period equal
to the longer of 30 days after redelivery or the original warranty period and to the same
extent as Products and Services initially furnished pursuant to this Order.
	 
	 	7.2.	 	Time for Compliance. If HP selects the alternative described in paragraph 7.1
(i), Supplier shall return the repaired Non-Complying Products or replacement no later than
ten (10) work days after receipt of the Non-Complying Products from HP. If HP selects the
alternative described in paragraph 7.1 (iii), Supplier shall re-perform the Services within
ten (10) work days after notice from HP that Services are defective or not in conformity
with the requirements of this Order. The cure period specified in Section 19.1 shall apply
only once to any breach of this section 7.2.
	 
	 	7.3.	 	Return Materials Authorization. Product may be returned to Supplier by HP only
as set forth in this Section and Exhibit C. Product returned to Supplier will be
accompanied by a Return Materials Authorization (“RMA”) issued by Supplier. Unless
Supplier reasonable requires further verification, Supplier will provide an RMA within two
(2) Business Days of HP’s request. Supplier will not unreasonably refuse or fail to
provide an RMA. Any replaced Products or parts shall become Supplier’s property.
	 
	 	7.4.	 	Credit, Repair, or Replacement. HP’s acceptance of each Product unit shall
occur upon HP’s receipt of such unit/s unless HP notified Supplier in writing sent by mail,
facsimile, or other electronic means within fifteen (15) days after HP’s receipt of such
Product unit that such Product unit is a non-complying Product. Supplier shall repair or
replace at Supplier’s sole expense each such Non-complying Product pursuant to the warranty
provisions under Section 6 herein and returned pursuant to Section 7 of this Exhibit B. HP
may elect in its sole discretion, to return a Non-complying Product for credit at
Supplier’s expense. In the event a Product returned by HP as Non-complying and, upon
Supplier performing testing upon the returned Product finds the
Product to be in compliance, then HP and Supplier will work together to ascertain why
complying Product is returned by HP.
	 
	 	 	 	Determination of whether to credit, repair or replace such Non-complying Products will be
mutually determined by the parties. Additionally, HP may return for repair or replacement
an entire lot of Product if (a) a tested sample (consisting of not less than ten (10) units)
of that lot contains greater than ten percent (2%) Non-complying Products and (b) the
aggregate number of Non-complying Products in all samples tested from such lot exceeds five
percent (5%) of the total number of units in such lot. Prior to






			
	 	 	 
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	 	 	 	HP returning an entire lot
of Products, Supplier will have the option to go on-site at Supplier’s expense to correct
the Product’s non-conformance. In the event of an over shipment, HP may elect to keep the
additional units, subject to the payment procedures in Section 8 of the Agreement. Supplier
will return the replacement or repaired Products as soon as possible but in no event later
than 15 Business Days after receipt of the Non-complying Product from HP.
	 
	 	7.5.	 	Return Charges. All Non-Complying Products returned by HP to Supplier will be
at HP’s sole risk and expense, including transportation and insurance charges, and all
replacement or repaired Products shipped by Supplier to HP to replace Non-Complying
Products, will be at Supplier’s risk and expense, including transportation charges.
	 
	 	7.6.	 	Failure to Provide Complying Products. If Supplier fails to return repaired or
replaced Products to HP within fifteen (15) Business days of receipt of Non-Complying
Products, HP may reject the Non-Complying Products with a full refund of all costs paid by
HP. If HP rejects the Non-Complying Products, HP may procure, upon such terms and in such
manner as HP deems appropriate, similar Products in substitution for the Non-Complying
Products.
	 
	 	7.7.	 	Failure to Re-perform Services. If Supplier fails to re-perform the Services
within ten (10) work days after notice from HP, HP may procure, upon such terms and in such
manner as HP deems appropriate, Services in substitution for the Non-Complying Services. As
Supplier’s sole liability and HP’s exclusive remedy, Supplier shall reimburse HP upon
demand for all additional costs incurred by HP in purchasing any such substitute Services,
but not more than the amount HP paid Supplier for the Non-Complying Service.
	 
	 	7.8	 	Epidemic Failure Remedy. If an Epidemic Failure occurs, HP may initiate in
its sole discretion a field stocking recall or customer based recall or retrofit. Upon such
initiation, HP may elect to have the Products (i) returned to Supplier for repair or
replacement; (ii) repaired or replaced by Supplier in the field; or (iii) repaired or
replaced by HP in the field, including Products in distributor inventory and HP’s installed
base. If HP chooses to perform a field repair, Supplier will provide the appropriate
replacement Products, parts or upgrades free of charge to HP. Such Products, parts or
upgrades will have the highest shipping priority. If in HP’s discretion, Supplier fails to
promptly repair or replace Products with Products that are acceptable to HP, HP may
procure, upon such terms and in such manner as HP deems appropriate, similar Products to
substitute for the Products, and Supplier shall reimburse HP for all charges, prices, and
fees paid for the affected Products and for all additional costs incurred by HP in
purchasing such substitute Products. All costs, including but not limited to materials,
labor, transportation and inventory replacement arising from an Epidemic Failure shall be
borne by Supplier except as provided below.






7.8.1. Exclusions from Supplier Liability. Supplier will not be liable for Epidemic Failure
or Product Recall costs to the extent the cause of the Epidemic Failure or Product Recall is
due solely to (i) compliance with the Requirements or Specifications to the extent provided
by HP, if all implementations thereof would result in the problem prompting the Epidemic
Failure or Product Recall and Supplier was unaware of the problem; (ii) consigned components
and Supplier was unaware of the problem; or (iii) a change in the law or other governmental
requirement after the date of manufacture.




7.8.2 Sharing of Costs. To the extent Supplier is not liable for Epidemic Failure or
Product Recall costs in accordance with the foregoing clause, HP is liable. If HP pays costs
for which Supplier is liable, HP may submit an invoice to Supplier for the amount paid.
Supplier will pay HP the invoiced amount pursuant to the payment terms of the Agreement.




	8.	 	SUPPORT/OTHER SERVICES






	 	8.1.	 	Supplier will maintain such number of qualified personnel as is necessary to provide
timely and knowledgeable Support and will provide Support to HP as set forth in Exhibit C,
Service and Support Requirements. Supplier may independently offer and provide maintenance
and support services to third parties, including HP’s customers, but Supplier may not use
HP Confidential Information or HP Property to provide such services.
	 
	 	8.2.	 	New Products. HP may request that Supplier provide HP with Product adapted for
use with new releases of HP Products within such time frames as may be negotiated by the
parties. Supplier will consider each request on a case-by-case basis. If Supplier agrees
to provide such Product, Supplier may purchase such HP Products as may be required for
Supplier to develop any adaptation, or, at HP’s discretion, such HP Products and Property
may be provided to facilitate the adaptation, subject to a separate agreement. Supplier
agrees that, during the Term and any extension thereof, any such newer products will be
made available to HP for shipment on or before the last shipment date made available by
Supplier or any other of Supplier’s similar customers with
similar volumes of Products (as measured over Supplier’s most recent calendar quarter) and
Supplier will reasonably endeavor to make available to HP in sufficient quantity to
accommodate all HP Orders reasonable within Forecast designated such newer products. In the
event of any allocated product status initiated by Supplier, Supplier will promptly give all
HP Orders no less order fulfillment and shipping priority than that given to Supplier’s most
favored customers with similar volumes of Products (as measured over Supplier’s most recent
calendar quarter), with such allocation to be made on a fair-share percentage-volume basis
between HP and Supplier’s other most favored customers.
	 
	 	8.3.	 	HP Property. HP may provide to Supplier HP Property solely for use in
Providing Services, Support or in Supplier’s






			
	 	 	 
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	 	 	 	manufacturing, testing or adapting Product.
All HP Property will be identified as the sole property of HP. HP Property may not be
transferred, assigned, loaned or otherwise encumbered by Supplier in any way. HP Property
may be provided to third parties for fulfillment of Supplier’s obligations hereunder only
upon HP’s prior written consent. Supplier will return, at its expense, HP Property in good
condition, reasonable wear and tear excepted, upon HP’s request or in all events upon
termination or expiration of this Agreement. HP may require Supplier to enter into further
written agreement and execute appropriate documentation as a condition to Supplier having
access to HP Property.
	 
	 	8.4.	 	Substitute Products. If Supplier develops any products that are more efficient
or less expensive than the comparable Product available under this Agreement, HP will have
the right to substitute such products, if compatible with any current version of HP
Products, at such pricing as the parties may mutually agree.
	 
	 	8.5.	 	Survival of Support Obligations. Supplier’s support obligations under this Agreement
shall survive any termination or expiration of the Agreement or any Exhibit or Addendum
until expiration of HP’s Survival Period. The license granted to HP and authorized Support
sub-contractors herein for support and maintenance purposes and any warranties and
indemnities made by HP shall survive any termination or expiration of this Agreement and
any Exhibit or Addendum. The rights HP has granted or agreed to grant Customers prior to
termination of the Agreement, including HP’s right to distribute Revisions of the Product,
shall survive until expiration of the Survival Period. Unless otherwise stated in Exhibit
C, Supplier’s obligations to provide Support will continue throughout the Term or, except
in the case that Supplier terminates this Agreement for HP’s uncured material breach of (a)
an uncontested payment obligation, (b) its confidentiality obligations or (c) Supplier’s
Intellectual Property Rights, for five (5) years after the last Delivery of Product under
this Agreement, whichever is longer; provided that as to any Product for which manufacture
or supply is discontinued in accordance with Article 9 , such obligations may be
discontinued when such Product is discontinued or if later, when Supplier ceases Support
for that Product (the “Survival Period”); and provided further that in the event of any
expiration or termination of this Agreement, except a termination by Supplier for HP’s
default, Supplier may, unless otherwise agreed, charge for providing Support at the prices
mutually agreed upon by HP and Supplier.






	 	8.5.1.	 	Failure Rate is addressed in Exhibit F.






	 	8.6	 	Actions Following Termination or Expiration of this Agreement. Upon the expiration
date or termination of this Agreement, HP shall initiate its service retirement process for
the Products. During the first ninety (90) days of the Survival Period, HP shall use
commercially reasonable efforts to take appropriate actions to cease the sales and renewals
of Service Agreements. HP, with input from Supplier, will develop a customer letter that
informs HP customers that HP is retiring Services for the Products, that HP will not longer
offer new Services Agreements for the Products, and will not renew any existing Services
Agreements for the Products. Supplier will provide information to identify the support
available from the Supplier and instructions on how to contact the Supplier for support.
HP will deliver the letter to the customers within the initial ninety (90) day period after
termination or expiration of the Agreement. HP shall use commercially reasonable efforts
to terminate any Service Agreements that extend beyond the Survival Period. In the event
there is a unique customer situation that precludes HP from terminating the customer’s
Service Agreement, HP and Supplier agree to work with the customer to implement a solution
that is acceptable to all parties.






	9.	 	DISCONTINUANCE OF PRODUCTS.






	 	9.1.	 	Lifetime Buy Rights. Unless otherwise agreed, Supplier may discontinue the
manufacture or supply of any Product no earlier than one (1) year after date of first
delivery to HP of said Product. If, thereafter, Supplier determines to discontinue the
manufacture and/or supply of said Product (a “Discontinued Product”), Supplier will give
written notice to HP in no event less than six (6) months in advance of the last date the
Discontinued Product can be ordered (the “Notice Period”). After receipt of notice of
discontinuance, during the Notice Period HP, may at its discretion:






	 	9.1.1.	 	Purchase from Supplier such commercially reasonable quantity of the Discontinued
Product as HP may reasonably deem necessary for its future requirements, such Orders to
be non-cancelable and non-returnable. Supplier will use all reasonable commercial
efforts to continue to provide Discontinued Product to HP and to facilitate transition
to by HP to new products for a period not to exceed nine (9) months following HP’s
receipt of notice of discontinuance.
	 
	 	9.1.2.	 	HP’s Right to Manufacture. If Supplier is unable or fails to deliver Product to HP
pursuant to any Accepted Order (and only
if HP has not previously terminated all Accepted Orders or this Agreement as a whole):






	 	9.1.2.1.	 	due to Supplier’s insolvency, reorganization, appointment of a receiver or
bankruptcy, or if Supplier makes an assignment for the benefit of its creditors or
Supplier admits in writing it is unable to pay its debts when due, or is no longer a
going concern (“Financial Crisis”), or
	 
	 	9.1.2.2.	 	due to a Force Majeure situation (as described in Section 14 which remains
unresolved for ninety (90) consecutive days during which time HP has been unable to
procure alternate product HP may, upon fifteen (15) days prior written notice to
Supplier, require that Supplier undertake the following:






			
	 	 	 
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	 	9.1.2.2.1.	 	Subject to the terms hereof, Supplier will grant to HP a non-exclusive,
non-transferable, worldwide license under Supplier’s directly applicable
Intellectual Property Right and Technical Information solely to the extent
necessary to use, support, reproduce (in the case of software), offer, sell,
import, manufacture and – solely for sale back to HP – authorize others to
manufacture, the Products. If Supplier fails to deliver Products due to a Force
Majeure situation, the license will expire upon cessation of the Force Majeure or
when Supplier resumes delivering the Product. If Supplier fails to deliver the
Products due to a Financial Crisis, such license will expire upon cessation of the
Financial Crisis and Supplier (or its successor) is capable of resuming
performance to HP’s reasonable satisfaction. The term of such licenses will
terminate automatically upon expiration of the then current Term of the
Agreement,). The foregoing licenses will be royalty free.
	 
	 	9.1.2.2.2.	 	Supplier will use commercially reasonable efforts to provide reasonable
technical support and assistance to HP regarding the licenses.
	 
	 	9.1.2.2.3.	 	Supplier will, upon HP request, provide the names and addresses of
Supplier’s sources for Parts not manufactured by Supplier, including the
appropriate part numbers for commercially available equivalents of electronic
Parts and use reasonable efforts to enable HP to purchase all such parts directly
from such sources during the term of the license.
	 
	 	9.1.2.2.4.	 	Supplier will furnish to HP without charge copies of all Parts catalogues,
schematics, design specifications, blueprints, material lists, engineering change
orders and other serving documentation reasonably deemed necessary by HP to
service and support the Products during the term of the license.
	 
	 	9.1.2.2.5.	 	Supplier will, for the term of the license, sublicense to HP any license
rights it may have with third parties for software, documentation or intellectual
property used in the manufacture of the Products, to the extent Supplier is
legally able to sublicense such rights. If Supplier cannot provide such rights,
they will identify such third parties and assist HP in securing those rights.
	 
	 	9.1.2.2.6.	 	Supplier will, upon HP’s request, use commercially reasonable efforts to
provide up to forty (40) hours of consulting services to HP at no charge to HP.
If necessary, additional consulting services will be provided at a rate as
mutually agreed to by HP and Supplier but in no event shall such rate exceed
industry standards.






	10.	 	TRAINING.






	 	10.1.	 	Technical Training. Supplier will provide to HP technical training in the
form of classroom courses and/or electronic-based training (“EBT”) courses to accommodate
HP technical personnel worldwide. The delivery method/s, audience/s, number and content
for each course will be agreed to in writing no later than ninety (90) days in advance of
each course’s first delivery date. The delivery schedule for such classes will be as
mutually agreed in writing by the parties. The first three (3) classroom course deliveries
provided by Supplier for each new product will accommodate at least ten (1) HP personnel
and will be made available at HP designated training sites at no charge to HP. At HP’s
sole election and upon not less than twenty-one (21) days advance notice to Supplier,
Supplier will provide the subsequent classroom courses to HP at HP’s sites at HP’s
election. All such subsequent classroom course sessions provided by Supplier will be at
standard Supplier off-site training charge to HP plus reasonable travel expenses of
Supplier’s personnel. Delivery for EBT courses will be provided at no charge by Supplier
at a time mutually agreed in writing but all other training provided pursuant to this
Section 10.1 will be provided on a time and materials basis at Supplier’s then standard
rates with Supplier’s reasonable costs to be reimbursed. Supplier will maintain a
designated training contact for HP learning products personnel, and will provide telephone
and email technical support to an HP trainer for the first two (2) classes taught by HP
utilizing the training provided hereunder by Supplier. Other training, including without
limitation Supplier’s Educational Services technical training) will be provided at HP
specified location upon mutually agreed upon dates.
	 
	 	10.2.	 	Pre-sales Training. Supplier will provide to HP pre-sales training no later
than four (4) weeks prior to launch, at an HP specified location, sufficient to cover a
mutually agreed number of HP trainers in order to allow HP to become fully familiar with
the Product and its market. Such training will be at no charge to HP. HP may further
requests and Supplier will provide additional
training at no charge as reasonably necessary to inform the HP personnel of each upgraded,
enhanced, or new version of the Products.
	 
	 	10.3.	 	HP’s Rights in Training Classes and Materials. Subject to the provisions of
Section 10 herein, HP may at no charge use, reproduce, display, and perform, either
internally or for HP’s customers, all training classes, methods, and materials supplied or
developed by Supplier under this Agreement (excluding Supplier’s Educational Services
classes, methods, and materials.). None of the training materials provided free of charge
by Supplier to HP under this Section 10 may be offered for resale by HP to HP’s Customers.
Supplier will provide a commercially reasonable selection of such pre-sales training
materials and technical training materials to HP no later than four (4) weeks prior to
launch.






			
	 	 	 
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	11.	 	LOSS CONTROL






	 	11.1.	 	Business Continuity. Supplier will develop and keep current a formal business
continuity plan that details Supplier’s strategies for response to and recovery from a
broad spectrum of potential disasters that could disrupt operations and timely delivery of
Product, material and services required pursuant to this Agreement. Upon request, Supplier
will make its business continuity plan available to HP or its designated representative for
review.






	12.	 	MARKETING AND LICENSING






	 	12.1.	 	Marketing Authority. HP will have the authority worldwide to market Product
and HP Products containing Product to the extent it deems appropriate. Without limiting
the generality of the foregoing sentence, nothing in this Agreement places a “best efforts”
obligation upon HP with respect to marketing Product or HP Products or precludes HP from
independently developing, purchasing, licensing or marketing any product which performs the
same or similar function as Product except insofar as this Agreement restricts the use and
disclosure of Supplier’s Confidential Information and other materials. HP will have the
right to use its own business and license terms for all marketing and distribution of
Product and HP Products provided that HP does not offer : (i) any business and/or license
terms which contradict or are inconsistent with the terms and conditions of the
Product-specific end-user software license provided by Supplier with any Software delivered
to HP with, or as part of, a Product; or (ii) any warranties, promises, covenants or
obligations on behalf of Supplier which are inconsistent with those set forth in this
Agreement (and giving consideration to all exclusions, limitations and disclaimers herein).
Notwithstanding the foregoing, HP may sublicense Supplier’s Software pursuant to an end
user license agreement that has been approved in advance in writing by Supplier, such
approval not to be unreasonably withheld. Supplier acknowledges that HP’s end user license
agreement will contain terms substantially similar to the HP Software License Terms
attached hereto as Exhibit J. In the event HP’s end user license agreement does not
contain terms substantially similar to those in Exhibit J, HP shall seek Supplier’s written
approval, which shall not be unreasonably withheld.
	 
	 	12.2.	 	Sales and Marketing Activity. During the Term of this Agreement and any
extension/s thereof, Supplier shall, upon request of HP, delivery to HP a commercially
reasonable amount of all sales, training, product, educational and marketing collateral
intended by Supplier for use in the distribution, sale, or marketing of the Products. All
such collateral content intended by Supplier for use with the Products shall be developed
by Supplier and provided to HP in electronic form. All such collateral and related sales
activity from or by Supplier, its employees, agents, ad subcontractors (excluding
Supplier’s current and future indirect channels of distribution that are resellers, service
bureaus, third party distributors, or third party (any of which who are neither owned nor
controlled in whole or in part by Supplier) which in turn sell or distribute the Products
to End Users), which is intended by Supplier for current HP customers or reasonably known
HP customer prospects shall be first coordinated through the HP-designated business contact
listed in Section 5 of the Agreement and subject to HP’s prior written approval, at HP’s
sole discretion, before Supplier may direct any such collateral or sales activity to such
HP customers.
	 
	 	12.3.	 	No Rights in Marks. Except as otherwise set forth in Section 12.4 below,
nothing in this Agreement grants either party any rights in the Marks of the other party;
provided that HP may use the name of Supplier and the name of any Product in advertising
and marketing Product or HP Products. As Supplier may reasonably require, Product will be
affixed with any additional copyright or trademark notices sufficient to give notice as to
the respective rights of the parties. On a case by case basis, Supplier may submit to HP a
press release or other publication for HP’s evaluation and written authorization; such
approval will be at HP’s sole discretion, which will not be unreasonably withheld. Supplier
may also seek authorization to include HP in customer listings that may be published as
part of Supplier’s marketing efforts, such authorization not to be unreasonably withheld.
	 
	 	12.4.	 	Private Labeling. If during the Term, HP requests, and Supplier agrees (in
its sole discretion), to produce HP private label versions of Product, Supplier will ensure
that Product contains HP Marks, serial number format and packaging as specified by HP and
conforms to HP specifications for external appearance. Supplier will make commercially
reasonable efforts to fulfill such request, as long as there is no material change in form
or dimensions of Product and no required commercially unreasonable action. HP will be
responsible for any additional costs reasonably incurred by Supplier in supplying private
label versions of Product. Except as provided herein, Supplier will have no other right or
license in any HP Marks.
	 
	 	12.5.	 	Software License.






	 	12.5.1.	 	Subject to the terms hereof, Supplier will grant to HP a non-exclusive,
non-transferable, worldwide, royalty-free license to the Software (including source code
to Software), under Supplier’s directly applicable Intellectual Property Right and
Technical Information, solely to the extent necessary to use, support, reproduce (in the
case of software), display, offer, sell, and import the Products. In addition, Supplier
grants HP a non-exclusive, worldwide license to modify and distribute, in binary
versions only, Software for purposes of correcting defects. HP Engineering may develop
and issue directly to Customers patches/bug fixes to the Software in order to resolve
Customer problems. HP agrees to make the source version of any such changes so made and
distributed available to Voltaire with any supporting documentation.
	 
	 	 	 	When HP is confronted with a time critical situation in which there are no immediate
solutions, Supplier may either incorporate the patch/bug fix into its next release of
the Software or resolve the identified problem using an alternate






			
	 	 	 
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	 	 	 	solution and include
it in a future version of the Software. Should the resolution be accomplished by an
alternate method to the HP resolution, Voltaire shall provide such resolution and
support documentation to HP. In such event, HP agrees that said future version of the
Software will be incorporated in a future version of the HP product incorporating the
Software and it will supersede the modifications made by HP.
	 
	 	12.5.2.	 	Rights to distribute Software in source form are not granted under this Agreement;
however, documentation and necessary header files (e.g. “.h” files) may be reproduced
and distributed in either electronic or hardcopy format.
	 
	 	12.5.3.	 	HP agrees to reproduce any proprietary rights legends of Supplier in any Software or
documentation reproduced and distributed by HP, provided that said legends appear at
installation or console login.
	 
	 	12.5.4.	 	Within ten (10) days of the Effective Date, Supplier shall deliver the Software to
HP. Supplier will prepare and also deliver appropriate documentation describing the
Software within the same timeframe.
	 
	 	12.5.5.	 	When reasonably available, HP will loan to Supplier a prototype HP Cluster or provide
reasonable access to such a system, the precise configuration to be determined by HP,
suitable to enable Supplier to develop a validated version of the Software. Any such
loan will be pursuant to HP’s standard Equipment Loan Agreement, and the parties agree
to execute such Agreement.
	 
	 	12.5.6.	 	Supplier will use commercially reasonable efforts to ensure that a validated version
of the Software is available to meet HP’s development and product announcement
requirements for the timely release of HP Products. Supplier will also provide HP with
a copy of its test suites to enable HP to test the Software, including testing on
large-scale systems.
	 
	 	12.5.7.	 	If this Agreement is terminated in accordance with Section 3 of the primary Agreement
(other than termination by Supplier for cause), the License granted to HP will continue
in effect but is limited to Supplier Software and Documentation available from Supplier
during the term of the Agreement.
	 
	 	12.5.8.	 	Future Versions of Supplier Software. Subject to its reasonable commercial
judgement, Supplier agrees to maintain the then current functionality and current IT-API
of the Software as part of its future development of the Software. Supplier further
agrees that improvements to the Software will be implemented in the Software for common
components. Supplier will provide these services at no charge to HP.
	 
	 	12.5.9.	 	At no cost to HP, Supplier will deliver Validated Versions (as such term is defined
in Exhibit C) of the Software on up to three (3) new versions of XC Software per year,
provided HP supplies or provides reasonable access to appropriate test configurations.
Supplier agrees to maintain the then current performance and functionality of the
Software, across those three (3) new versions of XC Software per year.
	 
	 	12.5.10.	 	With respect to paragraph 12.5.9 above, the Parties agree to exercise commercially
reasonable efforts to coordinate their activities with respect to development schedules,
field tests, and related matters to ensure that subsequent validated versions of the
Software containing functionality and performance equivalent with and to earlier
versions are available within thirty (30) days of HP’s request, provided that Supplier
has reasonable access to the hardware configurations and software necessary to create
such validated versions.
	 
	 	12.5.11.	 	HP agrees not to attempt to, or authorize any third party to (i) decompile, reverse
engineer or otherwise gain access to the Software source code (except HP may permit
authorized third parties under written agreements to have access to the source for the
purposes permitted in Section 12.5,1), (ii) modify, translate or create any derivative
work of all or any
portion of the Software except as expressly permitted under this Agreement; (iii) sell,
rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the
Software except as contained in the Products; (iv) remove, alter, cover or obfuscate
any copyright notices, trademark notices or other proprietary rights notices placed or
embedded on or in the Products; or (v) unbundle any software embedded within or
contained on the Products.
	 
	 	 	 	HP’s use of the Products that contain software from third parties shall be subject to
and shall comply with the applicable restrictions and other terms and conditions set
forth in Supplier’s end user license terms supplied with the Product, except to the
extent the end user license agreement or third party terms prohibit HP from using the
Software as described herein, in which case, this Agreement will control HP’s rights to
the Software. As of the Effective Date, Supplier’s end user license terms for the
Product is attached as Exhibit I and such third party software is listed in Exhibit K,
along with the applicable license terms for such third party software. In the event
Supplier substantially changes its enduser license agreement for the Products, it shall
provide HP with reasonable advance notice and a copy of such agreement prior to the
agreement taking effect. In addition, Supplier agrees to notify HP if any additional
third party code is added to the Products and such third party code is licensed under
terms different than Supplier’s end user license agreement. Notwithstanding anything
herein to






			
	 	 	 
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	 	 	 	the contrary, all references in this Agreement to the “purchase” or “sale” of
Software will mean, with respect to such Software, the acquiring or granting,
respectively, of a license to use such Software as set forth in this Section 12. All
copyright, patent, trade secret, trademark and other intellectual property rights
embodied in the Products will at all times remain the property of Supplier and its
licensors.






	 	12.6.	 	Documentation License. For purposes of this Agreement, Supplier hereby grants
HP a non-exclusive, non-transferable, worldwide fully paid up license to use, import,
reproduce, distribute, offer for sale in connection with distribution or sale of Products
and prepare derivative works, subject to Supplier’s consent (not to be unreasonably
withheld), in HP’s name all Documentation and other information, other than Confidential
Information, furnished by Supplier under this Agreement. HP may reproduce such
Documentation without Supplier’s logo or other identification of source, subject to
affixing copyright notices to all copies of Documentation. These rights with respect to
the Documentation will extend to Eligible Purchasers and, to the extent related to
distribution or sale of HP Products, to HP Subsidiaries, Affiliates and third party
channels of distribution as may be authorized by HP.
	 
	 	12.7.	 	License to Photograph (Marketing Materials). Supplier hereby grants to HP,
under Supplier’s intellectual property rights, a non-exclusive, worldwide license to
capture visual images of the Software screen displays and packaging, the Documentation and
the CD-ROM, if any, and to use, reproduce, display, perform, distribute, import such
photographs and modifications and images solely in connection with HP’s marketing and
support of the Software and training with respect to the Software. Such license will
include the right of HP to sublicense distributors, resellers, and other third parties to
achieve the foregoing. The rights granted to HP under this Section 12.7 are subject to
Supplier’s right to review and approve (which approval shall not be unreasonably withheld
or untimely delayed) any visual images submitted by HP (excluding HP’s standard
then-current trademarks, service markets, and logos), and the payment obligations as
generally set for in Section 2 above and more particularly in Exhibit C attached hereto.
	 
	 	12.8.	 	Localized Versions. The licenses granted hereunder with respect to the
Software and associated Documentation will include all localized versions thereof available
from Supplier. In the event HP reasonably requires a localized version of the Software,
the Supplier agrees to negotiate in good faith the commercial terms and conditions under
which such localized version would be produced for HP. All of the licensing terms for such
localized version would be consistent with this Agreement.
	 
	 	12.9.	 	End User License Terms. HP agrees to redistribute Software solely for use
with the Products, and always pursuant to an enforceable and binding sublicense agreement
between HP and end user customer containing provisions that are substantially similar to
the HP software license terms attached hereto as Exhibit J. Promptly upon request, HP will
provide Supplier with a copy of its then current sublicense agreement.
	 
	 	12.10.	 	HP Marks. If the parties mutually agree, Supplier will ensure that the Products
contain the HP Marks, serial number, format, and packaging specified by HP and conforming
to the HP specifications as set forth in Exhibit A. Except as provided herein, Supplier
will have no other right or license in any HP Marks.
	 
	 	12.11.	 	Access to Information Systems. Access, if any, to HP Information Systems is granted
solely to perform the Services under this Order and is limited to those specific HP
Information Systems, time periods and personnel as are separately agreed to by HP and
Supplier from time to time. HP may require Supplier’s employees, subcontractors or agents
to sign individual agreements prior to access to HP’s Information Systems. Use of HP
Information Systems during other time periods or by individuals not authorized by HP is
expressly prohibited. Access is subject to HP business control and information protection
policies, standards and guidelines as may be modified from time to time. Use of any other
HP Information Systems is expressly prohibited. This prohibition applies even when an HP
Information System that Supplier is authorized to access serves as a gateway to other
Information Systems outside Supplier’s scope of authorization. Supplier agrees to access
Information Systems only from specific locations approved for access by HP. For access
outside of HP premises, HP will designate the specific network connections to be used to
access Information Systems.
	 
	 	12.12.	 	Personal Data. Supplier agrees to comply with all applicable data protection rules when
collecting, storing, transferring, sharing and/or otherwise processing any Personal Data in
connection with this Order. “Personal Data” shall mean any information related to any
identified or identifiable natural or legal person, including but not limited to HP
employees and customers, and any other additional data deemed as personal data under any
applicable personal data protection laws. Unless expressly agreed otherwise, any HP
employee or customer Personal Data HP discloses to Supplier may only be used by Supplier to
perform its obligation under this Order, and must be handled in accordance with the then
current HP privacy policy.






	13.	 	INTELLECTUAL PROPERTY PROTECTION






	 	13.1.	 	Supplier’s Duty to Defend. Except as provided in Section 13.4, Supplier will,
to the maximum extent permitted by law, indemnify, defend and hold harmless, on a worldwide
basis, HP, HP Subsidiaries, HP Affiliates, HP Contractors and Eligible Purchasers and its
and their customers (including without limitation end users, distributors and resellers),
officers, directors, employees, agents and






			
	 	 	 
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	 	 	 	representatives (individually, an “Indemnitee”
and collectively, “Indemnitees”) from and against any claims, liabilities, losses and
damages relating to any claim by a third party that






	 	13.1.1.	 	Any Product,
	 
	 	13.1.2.	 	Any combination of any Product with an HP Product in an application which is intended
by Supplier from Specifications Supplier’s written designs, Supplier’s actions or
Documentation,
	 
	 	13.1.3.	 	Any Software,
	 
	 	13.1.4.	 	Any Documentation
	 
	 	13.1.5.	 	A Supplier mark or
	 
	 	13.1.6.	 	Anything else provided as part of Supplier’s Support, or use of any of the foregoing,
constitutes an unauthorized use , misappropriation or infringement of any third party’s
Intellectual Property Rights (all of the foregoing being referred to as an “IP Claim”).
Supplier will have the same duty to indemnify, defend and hold harmless Indemnitees as
set forth in the previous sentence in cases where any of the following applies with
respect to an IP Claim when (a) there is a breach of an intellectual property warranty
by Supplier, (b) Supplier is a direct infringer; (c) Supplier is a contributory
infringer; or (d) Supplier has induced infringement. Without limiting the generality of
the foregoing, but subject to the terms hereof, Supplier will pay all claims,
liabilities, losses, damages, judgments, awards, costs and expenses including reasonable
attorneys’ fees, expert witness fees and bonds incurred by Indemniteeswith Supplier’s
prior written consent after Supplier assumes control of such defense, such consent to
not be unreasonably withheld, and will pay any award in connection with, arising from or
with respect to any such claim or agreed to in any settlement of that claim.






	 	13.2.	 	HP’s Duty to Notify. HP will give Supplier prompt notice of any IP Claim. If
Supplier assumes defense of such IP Claim without reservation of rights, HP will provide
Supplier the sole authority, and all cooperation, information and reasonable assistance (at
Supplier’s expense) necessary to defend, settle or compromise any such claim. Supplier
will shall have sole control of the defense, compromise or settlement of any IP Claim
(except that HP’s prior approval will be required for any settlement , such approval not to
be unreasonably conditioned or withheld). Should Supplier not diligently pursue resolution
of such IP Claim or fails to provide HP with reasonable assurance that it will diligently
pursue resolution, then HP and any other Indemnitee may, without in any way limiting its
other rights and remedies, defend or settle the IP Claim and collect all costs of doing so
from Supplier (except that Supplier’s prior approval will be required for any settlement
that requires Supplier to admit wrongdoing or result in any ongoing liability to Supplier).
	 
	 	13.3.	 	Actions After Injunction or Order. If the use or combination of any Product
is enjoined, if the combination of any Product with an HP Product is enjoined where such
combination is intended by Supplier from Specifications, Supplier’s written designs,
Supplier’s actions or Documentation or if a court or government agency enters an injunction
or order forbidding the importing of any Product or preventing the Delivery of any Product
to HP (any of which Product begin referred to as “Infringing Product”), Supplier will, as
may be reasonable under the facts and circumstances and within a reasonable time, at its
sole expense, and having reviewed its options with HP;






	 	13.3.1.	 	Procure for HP and its customers the right to continue using or combining the Infringing Product.
	 
	 	13.3.2.	 	Replace the Infringing Product with a non-infringing Product of equivalent form, fit, function and performance;
	 
	 	13.3.3.	 	Modify the Infringing Product to be non-infringing Product of equivalent form, fit, function and performance.
	 
	 	13.3.4.	 	If none of the foregoing options is commercially reasonable, HP may return the
affected Product and Supplier will reimburse the purchase price paid with respect
thereto depreciated on a straight-line basis over a three-year period. In addition to
the above, Supplier will pay HP the ancillary costs incurred by HP and all other
Indemnitees due to delivery of Infringing Product, such as the costs of removal and
reinstallation.






	 	13.4.	 	Limitations. Nothing in this Article 13 applies to any Product to the extent
such Product has (i) been improperly installed, or has been repaired, altered or otherwise
modified (other than by Supplier or Suppliers authorized Subcontractors), (ii) been
subjected to misuse, abuse, negligence or accident, (iii)been used in a manner contrary to
Specifications or Supplier’s written instructions or Documentation or industry standard
practices, (iv) been comprised of materials provided or a design stipulated by HP to the
extent that the claim arises from Supplier’s compliance with a Unique Specification or (v)
except for those combinations for which Supplier shall indemnify HP pursuant to Section
13.1.2, where being used in combination with other products and such infringement would not
have occurred but for such combination, (vi) any use of a Product not strictly in accord
with this






			
	 	 	 
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	 	 	 	Agreement, or in an application or environment or on a platform or with devices
for which it was not designed or contemplated, or (vii) any Indemnitee’s continuing
allegedly infringing activity after being notified thereof or its continuing use of any
version of the Product after being provided modifications that would have avoided the
alleged infringement. To the extent that any of the foregoing limitations would otherwise
apply, it will not apply where the Product is claimed to be an unauthorized use,
misappropriation or infringement on account of a manufacturing, test, upgrade and/or repair
process used by Supplier unless HP has required Supplier to use in manufacture, test,
upgrade and/or repair of such Product the particular manufacturing, test, upgrade, and/or
repair steps that resulted in such claim.
	 
	 	13.5.	 	Entire Remedy. The foregoing states the entire liability of Supplier, and
Indemnitees’ exclusive remedy, with respect to any actual or alleged violation of
intellectual property rights by any Product, Software, Documentation or other subject
matter of Section 13.1, any part thereof or by its use or operation.
	 
	 	13.6.	 	Intellectual Property Developed Under this Agreement. Intellectual Property
Rights developed by Supplier or otherwise arising in the performance of this Agreement will
be owned as provided in this Section. The term “arising under this Agreement” includes
situations where (a) a worker or contractor of Supplier assigned to work solely on HP
matters develops Intellectual Property Rights or (b) a worker or contractor of Supplier
develops Intellectual Property Rights during the performance of HP work.






	 	13.6.1.	 	For Intellectual Property Rights arising under this Agreement which are solely
developed (e.g., conceived and reduced to practice) by a party, such Intellectual
Property Rights will be solely owned by that party.
	 
	 	13.6.2.	 	Notwithstanding the foregoing, HP will own any Intellectual Property Rights arising
under this Agreement where those rights (a) arise because of HP’s use of Supplier’s
services to perform consultancy or specific design tasks under a Professional Services
Agreement in writing and separately executed by the parties or (b ) are developed by
Supplier specifically for HP, whether or not as a result of HP’s specific use of
Supplier’s services to perform consultancy or specific design tasks, but only where
those Intellectual Property Rights have sole applicability to HP Products or to HP’s
processes or services and could not have any applicability to the products, processes or
services of any other customers of Supplier.
	 
	 	13.6.3.	 	In the event that the parties desire to perform joint development projects, the
parties shall enter into a separate agreement that shall set forth each party’s duties
and obligations regarding such development work and the division of Intellectual
Property Rights involved in and/or created by such development work.






	 	13.7.	 	No Implied Licenses. Except for the limited rights and licenses expressly
granted hereunder, no other license is granted, no other use is permitted and Supplier (and
its licensors) shall retain all right, title and interest in and to the Products, Software,
Documentation, Marks and marketing collateral (and all patent rights, copyright rights,
trade secret rights and all other intellectual property and proprietary rights embodied
therein). HP agrees not to take any action inconsistent with such ownership.
	 
	 	13.8.	 	Markings. HP agrees that the Products and Documentation will be branded in a
manner determined by Supplier, in its sole discretion. HP shall not (and shall not permit
any third party to) alter, obscure or remove any trademark, patent notice or other
proprietary or legal notice contained on any Product, Documentation, marketing collateral
or packaging.






	14.	 	FORCE MAJEURE EVENTS






	 	14.1.	 	Delaying Causes. Neither party will be liable for any delay in performance
under this Agreement caused by any act of God or other cause beyond Supplier’s reasonable
control and without Supplier’s fault or negligence including but not limited to fire,
flood, war, embargo, riot or an unforeseeable intervention of any government authority, which
causes complete business interruption (a “Delaying Cause”). A Delaying Cause does not
include delays in transportation prior to delivery, shortages of material (except
industry-wide shortage), delays by manufacturers or Subcontractors (except for causes beyond
such party’s reasonable control and without its fault or negligence) or economic
consideration or inefficiencies. No Delaying Causes will suspend or excuse either party’s
obligations as set forth in Sections 12 and 15 of this Exhibit B.
	 
	 	14.2.	 	Occurrence of a Delaying Cause. Any party whose performance is affected by a
Delaying Cause will notify the other party promptly upon commencement of a Delaying Cause
and will provide its best estimate of the expected duration of such occurrence. Upon
notice to Supplier after thirty (30) days of a Delaying Cause, HP may terminate any
unfilled Accepted Orders without liability. Any party whose performance is affected by a
Delaying Cause will exercise reasonable diligence to overcome and effect cessation of the
Delaying Cause and to mitigate effects thereof. Performance of the parties’ respective
obligations to purchase and sell Product will be suspended to the extent affected by, and
for the duration of , a Delaying Cause, and during pendency of a Delaying Cause affecting
Supplier’s ability to make timely Delivery. HP may purchase replacement Product elsewhere.
If, however, Supplier’s performance is delayed for reasons set forth above for a
cumulative period of thirty (30) days or more, HP, notwithstanding any other provisions of
this Agreement to the contrary, may terminate this Agreement and/or any Order issued
hereunder by notice to Supplier.






			
	 	 	 
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	 	14.3.	 	Resumption of Performance. The parties will resume performance under this
Agreement once the Delaying Cause ceases, and HP may, extend the Term up to the length of
time the Delaying Cause endured.






	15.	 	CONFIDENTIAL INFORMATION






	 	15.1.	 	During the Term, a party (the “Recipient”) may receive or have access to certain
information of the other party (the “Discloser”)) that is marked as “Confidential
Information,” or words of similar import, , including, though not limited to, information
or data concerning the Discloser’s products or product plans, business operations,
financial information, strategies, customers and related business information (including
all copies, analyses and derivatives thereof, “Confidential Information”). The Recipient
will not disclose the other’s Confidential Information to any third party without prior
written consent, and will protect the confidentiality of Confidential Information with the
same degree of care as the Recipient uses for its own similar information, but not less
than reasonable care. Confidential Information may only be used by those employees of the
Recipient who have a need to know such information for purposes related to this Agreement.
Supplier, will, upon HP’s written request, use commercially reasonable efforts to cause any
entity or person designated by HP to enter into a nondisclosure agreement which affords
materially comparable protections for HP’s Confidential Information. The parties
acknowledge that all Technical Information (including without limitation, any information
disclosed under Section 9.1.2) and Forecasts are deemed Confidential Information to be
protected for a term of three (3) years from date of disclosure. Each party shall be
responsible for any breach of confidentiality by its respective employees. Promptly after
any expiration or termination of this Agreement, or at the Discloser’s request at any time,
Recipient shall return to the Discloser all originals and copies of any Confidential
Information and all information, records and materials developed therefrom.
	 
	 	15.2.	 	Exclusions. The foregoing confidentiality obligations will not apply to any
information that (a) is rightfully known by the Recipient without restriction prior to
disclosure, (b) was developed by the Recipient prior to disclosure or is subsequently
developed independently and without reference to the disclosure, (c) is or becomes publicly
available through no fault of the Recipient , (d) is rightfully received from a third party
with no duty of confidentiality, (e) is disclosed by the Recipient with the Discloser’s
written approval or (f) is disclosed under operation of law (but only to the extent and for
the purposes of such legal requirement).






	16.	 	INSURANCE.
	 
	 	 	Supplier shall maintain, at its expense, a comprehensive general liability insurance policy
covering claims of bodily injury, including death, and property damage that may arise out of use
of the Products or acts of omission of Supplier under this Order, and containing such other
provisions as may be required by HP. Such policy or policies shall provide a coverage minimum of
$1,000,000 per occurrence. Each policy shall name HP, its officers, directors, and employees as
additional insureds only in respect of Supplier’s negligence. All such policies shall provide
that the coverage thereunder shall not be terminable without at least thirty (30) days prior
written notice to HP. Upon demand by HP, Supplier shall promptly supply HP with certificates of
insurance of such policies.






	17.	 	GOVERNMENTAL COMPLIANCE






	 	17.1.	 	General. Supplier will at all times comply with all federal, state, local and
foreign laws, rules and regulations applicable to its obligations under this Order and, if
applicable, its manufacture of Products. Supplier shall furnish to HP any information
required to enable HP to comply with such laws, rules, and regulations in its use of the
Products and Services or reasonably requested by HP to confirm compliance with such laws,
rules and regulations or with the provisions of this Order.
	 
	 	17.2.	 	Security. Without limiting Section 9.1, Supplier warrants that in all
countries in which Supplier does business, its operations and shipments comply with all
applicable laws and regulations regarding security. To the extent applicable to Supplier’s
business, Supplier agrees to implement the Security Recommendations set forth by the U.S.
Customs Service Customs-Trade Partnership Against Terrorism (C-TPAT)
(http://www.customs.gov/enforcem/tpat_security.htm) or equivalent security
guidelines. In addition, Supplier should meet or exceed security requirements designated by
HP. Supplier and HP may perform a formal, documented security compliance audit on an
annual basis, with the first audit taking place upon HP’s request at any time after
Supplier’s acceptance of this Order. Supplier shall immediately notify HP in writing of any
area where it fails to meet the applicable recommendations of C-TPAT or equivalent security
guidelines, or the HP Security requirements. Upon notification of Supplier’s failure to
comply, whether by Supplier or through an audit or HP inspection, HP may either terminate
the Order or grant a waiver of the requirement for a limited time to allow Supplier to
become compliant.
	 
	 	17.3.	 	U.S. Federal Procurement Requirements. Without limiting Section 9.1, in light
of HP’s status as a U.S. Federal contractor and subcontractor, all applicable procurement
regulations required by federal statute or regulation to be inserted in contracts or
subcontracts apply to this Order, including but not limited to FAR 52.219-8 (Utilization of
Small Business Concerns), FAR 52.219-9 (Small Business Subcontracting Plan), FAR 52.219-16
(Liquidated Damages Subcontracting Plan), FAR 52.222-26 (Equal Opportunity), FAR 52.222-35
(Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other
Eligible Veterans), FAR 52.222-36 (Affirmative Action for Workers with Disabilities) and
FAR 52.222-41 (Service Contract Act of 1965).






			
	 	 	 
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	 	17.4.	 	Other Requirements. Supplier shall comply with the applicable requirements of
Executive Order 11246, the Vocational Rehabilitation Act, and the Vietnam Era Veteran’s
Readjustment Act.
	 
	 	17.5.	 	Accessibility. Supplier warrants that all Products will meet the requirements
set forth in all federal, state, local and foreign laws, rules, and regulations applicable
to accessibility of information technology for people with disabilities. Supplier agrees to
use personnel trained and knowledgeable in supporting the needs of persons with
disabilities in performance of Services under this Order.
	 
	 	17.6.	 	Invoice Certification. When and if requested by HP, as a condition precedent
to payment thereof, Supplier shall separately certify each invoice as follows: “We certify
that contract deliverables listed hereon were produced in compliance with all applicable
requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act, as amended, and of
regulations and orders of the U.S. Department of Labor issued under Section 14 thereof. We
further certify that any and all additional contract deliverables will be produced in
compliance with same.”






	18.	 	SOCIAL AND ENVIRONMENTAL.






	 	18.1.	 	Social and Environmental Responsibility. Without limiting Section 9.1,
Supplier warrants that in all countries in which Supplier and, to Supplier’s knowledge,
information and belief, Supplier’s authorized subcontractors do business, its and their
operations comply with all applicable laws and regulations governing protection of the
environment, employee health and safety, and labor and employment practices, including but
not limited to, laws and regulations relating to working hours, working conditions, wages,
benefits, child labor, forced labor, freedom of association, and equal employment
opportunity. Supplier will comply with HP Supplier Code of Conduct
(www.hp.com/go/supplierE), including establishment of management systems as
described therein.
	 
	 	18.2.	 	Compliance. All Products and their packaging will comply with HP’s General
Specifications for Environment, DWG No. A-5951-1745-1 (www.hp.com/go/supplierE) in
addition to any other HP specifications for the Products.
	 
	 	18.3.	 	Shipment. All Products shall be shipped in conformance with government and
freight regulations applicable to chemicals and hazardous materials, including regulations
regarding fumigation and aeration where applicable. HP will not be liable for any loss or
damage caused by a release of chemicals or other hazardous materials to the environment
prior to HP’s actual receipt of the Products. All packaging materials, including pallets,
shall be free of pests and comply with regulations regarding Solid Wood Packing Materials
(SWPM) where applicable.
	 
	 	18.4.	 	Chemical Substances. Supplier warrants that: (i) each chemical substance
contained in Products is on the inventory of chemical substances compiled and published by
the Environmental Protection Agency pursuant to the Toxic Substances Control Act and (ii)
all Material Safety Data Sheets required to be provided by Supplier for Products shall be
provided to HP prior to shipment of the Products and shall be complete and accurate.
	 
	 	18.5.	 	Take Back. Supplier will accept back, free of charge, any material included in
the Products or their packaging returned freight prepaid by HP from any country that
requires Products be taken back from the user at the end of life of the Products.
	 
	 	18.6.	 	Ozone Depleting Substances. Supplier warrants that neither the Products, nor
any part, piece or component of any of the Products: (i) contains any “class I substance”
or “class II substance” as those terms are defined in 42 USC Section 7671 as now in
existence or hereafter amended or (ii) has been “manufactured with a process that uses” any
“class I or class II substance” as those terms are defined above.






	19.	 	DEFAULT.






	 	19.1.	 	Default by Supplier. If Supplier fails to perform or breaches any material
provision of this accepted Order, HP may terminate the whole or any part of this Order,
unless Supplier cures the breach within 20 days after receipt of HP’s notice of breach.
	 
	 	19.2	 	Definition of Breach. For purposes of Section 19.1, the term “breach” shall
include, without limitation, any: (i) proceeding, whether voluntary or involuntary, in
bankruptcy or insolvency by or against Supplier; (ii) appointment, with or without
Supplier’s consent, of a receiver or an assignee for the benefit of creditors; (iii)
failure to provide HP with reasonable assurances of performance on HP’s reasonable request;
or (iv) other failure to comply with this Order.
	 
	 	19.3.	 	Rights and Remedies. The rights and remedies granted to the parties under this
Agreement are in addition to, and shall not limit or affect, any other rights or remedies
available at law or in equity.






	20.	 	IMPORT REQUIREMENTS.






	 	20.1.	 	Certification. Upon HP’s request, Supplier shall provide HP with an
appropriate certification stating the country of origin for






			
	 	 	 
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	 	 	 	Products sufficient to satisfy
the requirements of (i) the customs authorities of the country of receipt and (ii) any
applicable export licensing regulations, including those of the United States.
	 
	 	20.2.	 	Required Marking. Supplier shall ensure that all Products are marked (or the
Products’ container is marked if there is no room on the Products themselves or unless
exempted from marking) with the country of origin. Supplier shall ensure compliance in
marking the Products with the requirements of the customs authorities of the country of
receipt.
	 
	 	20.3.	 	Importer of Record. If any Products are imported, Supplier shall, when
possible, allow HP to be the importer of record, unless otherwise negotiated. If HP is not
the importer of record and Supplier obtains duty drawback rights to the Products, Supplier
shall, upon HP’s request, provide HP with documents required by the customs authorities of
the country of receipt to prove importation and to transfer duty drawback rights to HP.
	 
	 	20.4.	 	Commercial Invoice. Supplier shall issue a commercial invoice containing such
information as HP may reasonably request, including, but not limited to, the following
information: invoice number; invoice date; name and address of the shipper; name and
address of Supplier (if different from the shipper); name and address of the consignee;
name and address of the buyer (if different from the consignee); a detailed description of
the Products; model numbers; HP part numbers; serial number (if Products are serialized);
HP assigned Harmonized Tariff Schedule (HTS) number; box number; total number of boxes;
total box weight expressed in kilograms; country of origin for each Product/part;
quantities in the weight and measure of the country to which the Products are shipped; unit
price of each Good; value of any assists or other additions to the price paid or payable;
total invoice value; currency of the invoice; incoterms; carrier name, and bill of lading
number. The invoice must be issued in the language required by the country to which the
Products are shipped. HP may require Supplier to submit invoices electronically, at
Supplier’s sole expense, in which case Supplier is thereby authorized to, and will,
transmit the required information in electronic format. HP may utilize a third party, at
HP’s sole discretion, to facilitate HP’s order and invoicing processes that may entail
disclosure of information about the Supplier and the receipt and processing of any purchase
order, invoice and related documentation.
	 
	 	20.5.	 	Other Requirements. Supplier shall comply with all other government agency
requirements (including Food and Drug Administration [FDA] and Federal Communications
Commission [FCC] in the case of a U.S. import) of the country to which the Products are
shipped. Failure to comply with import requirements will result in the transfer of
financial and legal obligations to the Supplier.






	21.	 	MISCELLANEOUS.






	 	21.1.	 	No Assignment. Supplier shall not delegate or assign its rights or obligations
without HP’s prior written consent, not to be unreasonably withheld. However, without HP’s
consent, Supplier may assign this Agreement to any of its affiliates or to any successor to
all or substantially all of its business which concerns this Agreement (whether by sale of
assets or equity, merger, consolidation or otherwise); provided, however,
if Supplier assigns this Agreement to any affiliate or successor that is an HP Competitor,
then HP may (within 30 days after such assignment) terminate this Agreement by giving such
assignee at least ninety (90) days prior written notice. As used in this Section 21.1, “HP
Competitor” means any corporate entity that manufactures, sells, and/or distributes
products similar to HP Products. Any attempted delegation or assignment by Supplier
without such consent
shall be void.
	 
	 	21.2.	 	Waiver of Terms and Conditions. The waiver of any term or condition of this
Order must be in writing. No such waiver shall be construed as a waiver of any other term
or condition except as provided in writing, nor as a waiver of any subsequent breach of the
same term or condition.
	 
	 	21.3.	 	Publicity. Supplier shall not make or authorize any news release,
advertisement, or other disclosure to any third party which shall deny or confirm the
existence of this Order or reveal the terms of this Order without prior written consent of
HP.
	 
	 	21.4.	 	Choice of Law. This Order shall be interpreted and governed by the domestic
laws of the state of California, without regard to its conflicts of law provisions.
	 
	 	21.5.	 	Limitation of Liability. Except for breach of confidentiality or the scope of
any license by either party, in no event will either party be liable to the other for
indirect, special, incidental or consequential damages (including without limitation, loss
of business, revenues, profits or goodwill), loss or inaccuracy of data, loss or
interruption of use, or cost of procuring substitute technology, goods or services. Except
for breach of confidentiality or the scope of any license by either party, in no event will
either party be liable to the other for aggregate damages in excess of amounts paid and
payable to it hereunder (in the case of Supplier) or amounts paid and payable by it
hereunder (in the case of HP) for the service or product giving rights to such damages,
regardless of the form of any claim or action (whether based on contract, tort, warranty,
strict liability or other legal theory). These limitations are independent from all other
provisions of this Agreement and shall apply notwithstanding the failure of any remedy
provided herein. Notwithstanding the above, Supplier will be responsible for any damages
of any kind included in an award or settlement of a third party claim under Section 13.






			
	 	 	 
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	 	21.6.	 	Non-Restrictive Relationship. Nothing in this Order will be construed to
preclude HP from independently developing, acquiring from other third parties, distributing
or marketing other Products or Services which may perform the same or similar functions as
the Products or Services provided under this Order, except insofar as this Agreement
restricts the use and disclosure of Confidential Information




IN WITNESS WHEREOF, the parties hereto have caused these Additional Terms and Conditions to HP
Short Form Product Purchase Agreement No.                      to be executed by their duly authorized
representatives as of the Effective Date of this Agreement.




	 	 	 	 	 	 	 
	APPROVED AND AGREED TO:

	 	 	 	APPROVED AND AGREED TO:	 	 
	 
	 	 	 	 	 	 
	Voltaire,
Inc.

	 	 	 	Hewlett-Packard
Company	 	 
	(Supplier)

	 	 	 	(HP)	 	 
	 
	 	 	 	 	 	 
	/s/ Mark E. Favreau

	 	 	 	/s/ Sue Oliveira
	 	 
	 

	 	 	 	 	 	 
	(Signature)

	 	 	 	(Signature)	 	 
	 
	 	 	 	 	 	 
	Mark E. Favreau

	 	 	 	Sue Oliveira	 	 
	 

	 	 	 	 	 	 
	(Typed Name)

	 	 	 	(Typed Name)	 	 
	 
	 	 	 	 	 	 
	EVP & GM

	 	 	 	Director, BCS Procurement	 	 
	 

	 	 	 	 	 	 
	(Title)

	 	 	 	(Title)	 	 






			
	 	 	 
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Exhibit C

To Agreement No. XXXX-XXXXXX




Service and Support Requirements





	1.	 	General Terms






	 	1.1.	 	Scope. Supplier will provide maintenance and support services to HP as
specified in these Support Terms to allow HP to provide effective service to end-user
customers (“Customers”) of the Product. Unless otherwise agreed, HP will serve as the
primary support contact with Customers, and Supplier shall have no direct end user customer
support obligations except as otherwise provided herein. The obligations of each party are
specified below. In case of any conflict with the agreement which contains this Service
and Support Exhibit (“Agreement”), the terms of this Service and Support Exhibit will take
precedence for clarification of support obligations, but will not otherwise modify the
Agreement.
	 
	 	1.2.	 	Definitions. The following capitalized terms will have these meanings when
used in these Support Terms and elsewhere in this Agreement:
	 
	 	 	 	“Action Plan” means the initial plan to be created and implemented by Supplier in response
to an HP Problem Resolution or Escalation request. At a minimum, the Action Plan must
contain the following:






	 	a.	 	Problem Statement;
	 
	 	b.	 	List of all key HP and Supplier contacts and their managers;
	 
	 	c.	 	Actions to be taken;
	 
	 	d.	 	Purpose and desired result for each action;
	 
	 	e.	 	Expected completion time; and
	 
	 	f.	 	Contingencies or alternatives if desired results are not
achieved.






“Class Failures” shall mean a large number of Failures attributable to a unique defective
sub-assembly component or when the Failure Rate suggests the possible existence of an
Epidemic Failure Rate.




“Corrective Action Plan” means an HP approved plan developed by Supplier to remedy a
Failure. It shall, at a minimum, include a detailed description of the actions to be
implemented in the product design, production process, inspection process, or Product
sourcing in response to and to remedy a Failure. The Corrective Action Plan shall describe
the additional engineering and technical support Supplier will provide to reduce the
Product Failure Rate to a level at or below the target Failure Rate for the Product as well
as any other necessary corrective measures as agreed by HP and Supplier. The Corrective
Action Plan may potentially also include the following remedies: (i) expedited shipment of
replacement Products for inventory retrofit; (ii) processing all returns at no cost to HP;
(iii) shipment of Software fixes directly to registered customers; (iv) credit for RMA
backlog, and (v) any other actions as HP deems appropriate.




“Critical/Production Environment Down” shall mean any production system or production
application down or at severe risk, a data corruption or loss risk, customer’s business is
severely affected, or there are safety issues. This is the same as an “Escalation”.




“Defect” shall man any condition in the Product/s which results in a failure of Product/s
to conform to Product Specifications in Exhibit I of this Agreement.




“Eligible Purchasers” shall have the same meaning as it does in the PPA to which this
Exhibit is attached; except, however, it shall also include, solely for the purposes of
this Exhibit, HP authorized service providers, including without limitation, HP repair
centers, and HP-authorized channel partners.




“Escalation” shall mean a Product situation requiring immediate action by HP and Supplier.
This situation is defined by HP and can only be declared to Supplier by HP after HP’s
standard support escalation procedure. This is the same as “Critical/Production
Environment Down”.




“Escalation Process” ensures that immediate action is taken by HP and Supplier on a
Customer Problem or to assist an HP field engineer who is on-site, and to ensure that a
Customer Problem is being resolved in a satisfactory manner. HP has the sole authority to
declare a situation as an Escalation. It is necessary that (i) both
parties have a comparable perception of the nature and criticality of the Problem; (ii) the
visibility of the Problem



			
	 	 	 
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is raised in each party’s organization; and (iii) additional
resources as necessary are allocated towards solving the Problem.




“Failure” shall have the same meaning as it does in the PPA to which this Exhibit is
attached.




“Fix means a change in a Product that removes a problem in that product. A Fix must be
designed and tested so that it can be distributed to all Customers. A Fix may be temporary
or permanent. A temporary Fix may be a patch or bug fix that temporarily modifies a
Product or any software in the product without rebuilding that product. A permanent Fix
provides a permanent solution to the problem, agreed upon by both HP and the Supplier.




“Hot Site” shall mean an HP Customer situation requiring immediate action by HP and
Supplier. This situation is defined by HP and can only be declared to Supplier’s Manager
of Customer Support.




“HP Cluster” or successor designations means a collection of HP workstations or servers
running the Linux operating system that is qualified and marketed by HP.




“HP Linux Software” or successor designations means the software, including the Voltaire
Software Bundle, provided by HP to run on an HP Cluster.




“Problem Resolution” is the process described in Article 3 below through which HP submits a
Request for Technical Assistance to notify Supplier when a problem (such as a fault or
defect) is suspected in a Product. Under this process, HP Confirms the problem diagnosis
with Supplier, and the parties cooperate to resolve the problem.




“Products” means the products listed in Exhibit A of the Agreement to which this Exhibit is
attached, including all related Documentation, Software licenses and media, Parts, and
other deliverables provided pursuant to the Agreement.




“Product Recall” means any recall campaigns initiated by HP or Supplier related to the
Products listed in Exhibit A to remedy a breach of any of Supplier’s warranties, agreed
upon quality levels, or safety levels, or undertaken to comply with an Applicable Law (as
defined in the PPA) or other governmental requirements; or, at HP’s sole discretion to
maintain HP’s reputation for quality in the marketplace.




“Release” shall mean a new official build of the software that is released generally to
licensed users, and which may include new features or fixes to outstanding defects in the
product. A Release shall supersede all the Revisions of the software since the previous
Release.




“Revision” shall mean any correction, modification, maintenance release, patch, bug
fix,update, upgrades or new versions of the product software or firmware.




“Severity 1 Problem” means a catastrophic problem that could severely impact a customer’s
ability to conduct business. It could mean a customer’s systems and/or product are down or
not functioning.




“Severity 2 Problem” means a high-impact problem in which a customer’s operation could be
disrupted but there would be capacity to remain productive and maintain necessary
business-level operations.




“Spares” means Parts identified by HP as “Field replaceable units” (FRU) and used to
maintain Products. These parts can be new units, refurbished nits or repaired units as long
as they meet form, fit, function, and cosmetic specifications of the currently shipping
units.




“Standard Voltaire Software” means the standard software supplied by Voltaire for use with
Voltaire’s Infiniband products running the Linux operating system.




“Status Update” means Supplier’s summary of the problem, describing the possible cause and
the incremental work to be performed to reach resolution, including the Action Plan and the
availability date of a Fix.




			
	 	 	 
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“Support Information” means Product Service Information and a Knowledge Data Base of known
problems related to Supplier’s support of Products.




“Technical Assistance” is the process described in Article 2 below through which HP obtains
assistance from Supplier in the support of Customers. Technical Assistance includes the
exchange of information, such as product configuration, product operation, or other
necessary answers or assistance to support questions.




“Tracking System” means an electronic database to be maintained by the parties for updating
and communicating information pertaining to Service Requirements. Technical Assistance,
Problem Resolution, and Escalation. The particular type of Tracking System will be
mutually determined, as more particularly described in Section 1.7 below.




“Validated Version” means a Version of software that has been tested, using test suites and
such other procedures as may be reasonably necessary, conforms to the applicable software
description, and does not contain any Severity 1 Problems or Severity 2 Problems.




“Version” shall mean the software release identification, generally in the form of X.YYz
where X is a number which represents a particular major Release, YY is a number which
represents a particular Revision of that Release, and z is a letter which distinguishes
between Revisions which are primarily distinguished by the list of hardware platforms on
which the software has been qualified. Two software Releases are considered to have the
same Version if they are identified by the same values of X and YY.




“Voltaire Software Bundle” means the subset of the Software as mutually agreed by HP and
Voltaire for use on HP Linux Systems.




“Workaround” means a temporary solution or temporary Fix that restores operational
capability for the Product without severely compromising the performance of that product,
until a permanent Fix is available. A Workaround can be a change in the configuration or a
change in Customer documentation.




	 	1.3.	 	General Obligations: Each party agrees to the following general terms:






	 	1.3.1.	 	For each Product, Supplier will provide a product support plan incorporating HP’s
support planning processes and support recommendations.
	 
	 	1.3.2.	 	Unless expressly authorized under these Support Terms, neither party will commit
resources of the other to Customers.
	 
	 	1.3.3.	 	Both parties will provide such information to each other as is needed to implement
these Support Terms, subject to the confidentiality and licensing provisions of this
Agreement. Unless otherwise specified, all such information will be used by the other
party solely for its internal use to fulfill its obligations under these Support Terms.
	 
	 	1.3.4.	 	When either party makes changes to its support policies and procedures that may
affect its ability to support Customers or the other party under these terms, the party
making the changes will inform the other party’s Strategic Support Contact listed in
Appendix I below of such changes in accordance with the procedures described in these
Support Terms.
	 
	 	1.3.5.	 	HP may represent itself as being certified and authorized by Supplier to maintain or
repair Supplier’s products. Nothing in these Support Terms prohibits either party from
independently supporting the other party’s products; provided that each party
acknowledges that, except as expressly granted hereunder or in the Software License
Agreement, no licenses are granted to the other to use that party’s confidential
technical information or other intellectual property
	 
	 	1.3.6.	 	HP requires verification of Supplier’s replacement/repair process for FRU’s and
Products. Upon the Effective Date of this Agreement, Supplier will promptly provide a
FRU replacement and repair plan of sufficient detail to HP’s reasonable satisfaction.
The number of times a FRU is repaired is limited to two (2)
occurrences total for any unit. A FRU shall be subject to extraction from circulation
for scrap immediately upon third failure.






			
	 	 	 
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	 	1.3.7.	 	With respect to each Product supplied by Supplier under this Agreement, HP shall
attempt to resolve Customer problems independently using the training and information
provided by Supplier. HP will attempt to recreate the Customer’s problem, determine
the resolution and develop corrective action, which will be communicated back to
Customer. HP will follow the published Voltaire trouble shooting and diagnostic
procedures and/or by following specific procedures provided by Supplier to HP during
training.
	 
	 	1.3.8.	 	If a greater level of technical expertise is required, HP will engage Supplier in
resolving the Customer’s problem via                     . Supplier agrees to participate with
HP in the problem solving at this level. Such technical assistance shall include the
exchange of information (e.g. Product configurations, Product operation, or other
necessary support questions), Problem Resolution, and Escalations through email and/or
telephone assistance.
	 
	 	1.3.9.	 	Unless otherwise agreed, HP will serve as the primary support contact with Customers
and Supplier shall have no direct end-user Customer support obligations except as
otherwise provided herein. The obligations of each party are specified below. In case
of any conflict with the Agreement which contains this Support Exhibit, the terms of
this Exhibit C will take precedence for clarifications of support obligations but will
not otherwise modify the Agreement.






	 	1.4.	 	Strategic and Technical Support Contacts: Supplier and HP have each designated in
Appendix I a Strategic Support Contact and a Technical Support Contact, which may be one
and the same person. The Strategic Support Contacts will be the focal points for general
relationship and process issues and will be responsible for managing the overall
relationship of the parties. The Technical Support Contacts will be the focal points for
Customer technical issues, including Technical Assistance, Problem Resolution and
Escalation. Technical and Strategic Support Contacts may be changed at any time upon
written notice to the other party.
	 
	 	1.5.	 	Status Review Meetings: Supplier and HP Strategic Support Contacts or their designees
will meet on a regular basis for the purpose of reviewing the effectiveness of their
support relationship, suggesting changes, implementing improvements and sharing technical
information. Meetings will take place at least quarterly in the first year of the
Agreement, and at least annually thereafter.
	 
	 	1.6.	 	Communications Between Parties. Any support-related communications required or
permitted to be given under these Support Terms will be made by telephone, or by electronic
mail (“e-mail”) in a standard format agreed to by the parties, to the appropriate contact.
	 
	 	1.7.	 	Problem Tracking System: The parties agree to implement and maintain a
problem-tracking database (the “Tracking System”) for inputting, accessing and updating
information on Requests for Technical Assistance, Problem Resolution and Escalation.
	 
	 	1.8.	 	Response Times: Supplier agrees to respond to HP requests for Technical Assistance,
Problem Resolution and Escalation as soon as possible after receipt of the request, but in
no event later than the response times Specified in Appendix II to these Support Terms, in
accordance with the problem classification listings in that Appendix.
	 
	 	1.9.	 	Types of Support: In addition to the technical assistance in Section 1.3.8 above,
Supplier will also participate in Problem Resolution and Escalations. Problem Resolution
is the process whereby HP notifies the Supplier directly when a Problem (fault or
deficiency) is suspected in the Product/s, HP confirms the Problem diagnosis and issues a
service request against the Product/s, and Supplier acknowledges the request and takes the
lead in Problem Resolution. HP and Supplier will cooperate in resolving the problem.
Supplier will notify HP of Problem Resolution and HP will close the services request with
the Supplier upon confirming the problem has been resolved to the Customer’s satisfaction.
Escalation is a process to ensure immediate action is taken by HP and Supplier on a
Customer Problem, provide assistance to an HP field engineer on-site at a Customer
location, and ensure a Customer Problem is being resoled in a satisfactory manner. In an
Escalation, both parties must have the same perception of the nature and criticality of the
Problem, raise the visibility of the Problem within their respective organizations, and
allocate additional resources as required to solve the Problem.
	 
	 	1.10.	 	Required Set Up. HP will assist Supplier in ensuring Supplier will have the necessary
HP and Supplier Software and equipment required to reproduce any problems reported by HP.
HP assistance may include load of HP equipment and/or facilities






			
	 	 	 
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	 	 	 	Supplier may contact the person who wrote the HP incident report for the specified purpose
of clarifying the problem. HP will provide Supplier with an email address or pone number
contact for the Customer. If access to the Customer system is required, HP will work with
Supplier and the HP Customer in gaining agreement to allow Supplier direct access to the
system and to provide information such as login ID, passwords and details for remote access
to the Customer’s system as practical.
	 
	 	2.0	 	Back Up Support Services. Supplier shall provide at a minimum the following
maintenance and support with respect to the Products:






	 	§	 	Use of Supplier’s current call tracking system and process for tracking the
progress of outstanding bugs and fixes which includes a method for HP to submit defect
reports and to cooperate with Supplier to promptly resolve outstanding Problems
	 
	 	§	 	Promptly fix or provide workaround to such bus, error, and defects as set forth in
Error Classifications.
	 
	 	§	 	Maintain a support contact to review calls/emails from HP concerning Problems,
questions, and Escalations.
	 
	 	§	 	Provide prompt notification and assistance in the event Supplier determines a
Problem exists as set forth in Error Classifications.
	 
	 	§	 	Provide normal evolutionary enhancements, updates, and revisions, after
functionally complete but as soon as feasible prior to general release.
	 
	 	§	 	Provide a designated, knowledgeable support contract to provide technical support.
	 
	 	§	 	Support, at a minimum, will include the current Release or Current Version and the
one (1) Prior Version of each Product. In no case will any Release be supported for
less than twenty-four (24) months. New Releases will carry forward the prior released
bug fixes.
	 
	 	§	 	On any correction or an error in classifications of Escalation, Critical, Major
Impact, or Minor Impact, Supplier shall use best efforts to correct the Problem and to
implement the Fixes, complete with any needed documentation, test procedures or
special instructions. Supplier will run regression tests on the fixes before
delivery. It will be HP’s responsibility to supply any and all patches to its
Customers.
	 
	 	§	 	Except as may be otherwise mutually agreed, Supplier shall have no obligation to
make Enhancement corrections. Any Enhancements undertaken by Supplier shall be
released at Supplier’s discretion and in accordance with a schedule set up by
Supplier.
	 
	 	§	 	Notwithstanding any of the foregoing, if a Problem in a Product occurs as a result
of the operation of or presence of another Product bundled with the HP Product, such
error will not be deemed to be an Error for the purposes of this Agreement provided
that, on request, Supplier will cooperate with HP in the correction of any such error.
	 
	 	§	 	In the event that HP elects to continue to support a Product which Supplier has
decided to retire, or HP elects to support a Version of the Product that Supplier is
no longer required to support, Supplier agrees to enter into negotiations in good
faith to effect either a last time buy or a manufacturing license.






	2.	 	TECHNICAL ASSISTANCE






	 	2.1.	 	HP Request for Technical Assistance. When making a request for Technical Assistance,
HP will provide the following information to Supplier: (a) description of the situation;
(b) the HP assigned call classification and the HP identification number; and (c) the call
back phone number if different from the Technical Support Contact phone number listed in
Appendix I.






	 	2.1.1.	 	Collect the following information for analysis: switch trace, log file, or data dump
using Supplier’s Utilities and Finisar trace (strongly recommended)
	 
	 	2.1.2.	 	Provide information for Supplier to be able to reproduce the problem including
step-by-step procedure/s used to recreate the problem, if possible.






	 	§	 	System Configuration information:
	 
	 	§	 	HOST: All OS platforms and versions; HBA type and driver version
	 
	 	§	 	HOST Applications: List
	 
	 	§	 	Storage: Disk or tape subsystem type (i.e., RAID, JBOD, public, private, DLT,
etc.), manufacturer and firmware version
	 
	 	§	 	Storage management software and applications
	 
	 	§	 	Switch topology: Network configuration description. SAN diagram, if possible.
	 
	 	§	 	Number and type/s of switches in the configuration
	 
	 	§	 	Parallel fabrics, if applicable. Dual host, storage connections
	 
	 	§	 	Third party switches linked to the fabric
	 
	 	§	 	Bridges, gateways, or routers connected and to what they are connected






			
	 	 	 
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	 	2.1.3.	 	Effective as of the date of first customer shipment of the Product, Supplier will
make its Technical Support Contacts available to receive Technical Assistance requests
from HP through the Supplier’s designated toll free telephone number 1.800.voltaire,
designated email address, support@voltaire.com and/or designated web site
www.voltaire.com. Supplier shall provide technical support to HP Support as set forth
in this Agreement from 8:00 AM to 8:00 PM Eastern Time from our Billerica, MA
Headquarters. Supplier will provide same level of support from Sunday to Thursday from
8AM-6PM (GMT+2) from our EMEA office. E-mail and website remain the same. Toll-free
support number is 1-877-627-5587.
	 
	 	2.1.4.	 	Supplier will take all necessary steps to resolve the Technical Assistance request
and provide HP with the resolution and all available information as soon as it is
available and will make its best efforts to meet the response times specified in
Appendix II.
	 
	 	2.1.5.	 	HP agrees that support engineers that contact Supplier for Technical Assistance have
previously received training on the Product.






	 	2.2.	 	Technical Assistance Records. Supplier will keep a record of all Technical Assistance
requests in Suppliers Tracking System and update their current status. As soon as possible
following final resolution, Supplier will input a detailed description of the Technical
Assistance request and resolution in Supplier’s Tracking System.






	 	2.2.1	 	Technical Assistance records will include, at a minimum the following information:






	 	§	 	HP call identification number and Supplier call tracking number
	 
	 	§	 	Date of initial call to Supplier
	 
	 	§	 	Names of call participants
	 
	 	§	 	Times and dates of subsequent calls to HP
	 
	 	§	 	Model, version, and serial number of Product/s involved. Version of operating system involved.
	 
	 	§	 	Problem Description (Symptoms) as provided by HP
	 
	 	§	 	Root Cause/s as provided by Supplier
	 
	 	§	 	Recommended Corrective Action/s Alternative/s and Priority/ies (Steps taken to
diagnose and remedy the problem) provided by Supplier
	 
	 	§	 	Any Action Plan/s required for follow up or resolution
	 
	 	§	 	Date of resolution.






	 	2.3.	 	Closing Technical Assistance Request. After a Technical Assistance request is resolved
and resolution information is communicated to HP and documented in the Tracking System, HP
will contact Supplier to close the request.
	 
	 	2.4.	 	Monthly Technical Assistance Report. Supplier will provide a monthly technical report
covering all problems received from HP during the current month, all problems still open
from previous months, including the original date forwarded to Supplier, current status of
each problem, categorization of problems and resolutions, and problem metrics including
average response time and number of escalations. Note: Problems include both Problem
Resolution Request and Escalations.






	3.	 	PROBLEM RESOLUTION






	 	3.1.	 	Request for Problem Resolution Service. HP will receive defect reports, inquiries and
problems calls about Products from HP’s Customers. If HP is unable to resolve a problem
after Technical Assistance and after reasonable efforts, HP may provide Supplier with a
Request for Technical Assistance. When Making said Request for Technical Assistance, HP
will provide the following information in addition to the HP provided information
identified and listed in Section 2.1.2 and 2.2.1 above:






	 	3.3.1	 	Description of diagnostic work performed and data collected by HP
	 
	 	3.3.2	 	Action being requested (e.g. remedying or assisting in isolating the fault)
	 
	 	3.3.3	 	Problem classification pursuant to the definitions in Appendix II






	 	3.2.	 	Problem Resolution Process. Upon receipt of HP’s Request for Technical Assistance,
Supplier will acknowledge receipt and then acknowledge HP’s diagnosis of the problem. When
mutually deemed necessary, Supplier will make Supplier’s engineering department available
to HP’s engineering department so that “Lab to Lab” contact may be established. Supplier
will recommend appropriate corrective action/s on the Request for Technical Assistance to
resolve the problem as soon as possible, but in no event later than the response times
specified in Appendix II, according to the classification of the problem.






	 	3.3.1	 	In the event that neither HP nor Supplier is able to isolate and resolve a
Critical or Serious situation, HP may request that Supplier assist HP in dialing into
the Customer’s system directly to assist HP in analyzing and troubleshooting the
problem. Supplier will provide any necessary diagnostic tools to troubleshoot the
problem on site. HP will provide Supplier access through telnet or web tools. If the
problems is mutually






			
	 	 	 
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	 	 	 	deemed to require Supplier’s on-site presence in order to diagnose
and isolate a problem, Supplier will provide technical assistance on-site.
	 
	 	3.3.2	 	Supplier will provide an Action Plan within the response times listed in
Appendix II, based on HP’s classification of the problem. An Action Plan may require
Supplier to (a) reprioritize its other activities in order to meet the commitment to
solve a Customer problem, (b) increase resources to address the problem, (c) assist HP
with remote dial in to a Customer system for direct observation, (d) assist HP with
on-site analysis.
	 
	 	3.3.3	 	Supplier will notify HP upon resolution of the problem or upon the
availability of a Fix or Workaround. If a permanent resolution cannot be achieved
within the response times specified in Appendix II, Supplier will notify HP of any
modification to the original Action Plan and the anticipated availability of a
permanent problem resolution.
	 
	 	3.3.4	 	Supplier will enter in Supplier’s Tracking System all Status Updates, Action
Plans, and other communications requested by HP’s Technical Support Contact. Supplier
may request additional information from the HP Technical Support Contact in order to
meet the response times specified in Appendix II.






	 	3.3.	 	Problem Resolution Records. Supplier will keep records of all Requests for Technical
Assistance in Supplier’s Tracking System and update their current status. Supplier will
also be responsible for accessing, reviewing, and updating defect information related to
the problems. Supplier will provide weekly report as referenced in paragraph 2.4 above.






	 	3.3.1	 	Problem Resolution records will include, at a minimum, the items listed in
paragraphs 2.1.1, 2.2.1, and 3.1.2 above, along with the following:






	 	§	 	Summary of the problem as finally diagnosed.
	 
	 	§	 	Detailed description of the root cause/s and symptom/s
	 
	 	§	 	Date of Problem Resolution request and final resolution
	 
	 	§	 	Likelihood of problem recurring and recommended action in the event of a recurrence
	 
	 	§	 	Supplier and HP Service Request number for cross reference purposes
	 
	 	§	 	Fix or Workaround implemented and how and when available
	 
	 	§	 	Tests performed on the Fix or Workaround
	 
	 	§	 	If only temporary Fix or Workaround is available, the Action Plan for achieving a Permanent Fix.






	 	3.4.	 	Closing Problem resolution Request. After problem resolution has been communicated to
HP and verified by agreement of HP and the Customer, HP will notify Supplier that HP is
closing the Problem Resolution and Request for Technical Assistance.






	4.	 	ESCALATION






	 	4.1.	 	Requesting and Escalation. If HP determines that additional attention and extra
resources from Supplier are needed to resolve a Customer situation or to assist HP
engineering on-site, HP may request an Escalation. Supplier will cooperate with HP by
following the Escalation procedures set forth below.






	 	4.1.1	 	When Requesting an Escalation, in addition to the HP provided information
required under Problem Resolution in Sections 2 and 3 above, HP will provide:






	 	§	 	Caller’s location
	 
	 	§	 	Any currently installed Fixes or Workarounds
	 
	 	§	 	Reason for Escalation
	 
	 	§	 	Steps taken to resolve problem
	 
	 	§	 	Any Requests for Problem Resolution issued with respect to the problem.






	 	4.2.	 	Response to Escalations. Supplier will continue to cooperate with HP until the
Escalation is resolved or until HP and Supplier mutually agree that all reasonable means of
resolution have been exhausted. Effective as of the date of first customer shipment,
Supplier will respond to an Escalation form HP twenty-four (24) hours per day, seven (7)
days per week.
	 
	 	4.3.	 	Escalation Process. HP’s Technical Support Contact may contact Supplier’s Technical
Support Contact to request Escalation. HP will follow up by email with any additional
information available at the time. Supplier will have primary responsibility to resolve
the Escalation, and when mutually deemed necessary, Supplier will make Supplier’s
engineering department available to HP’s engineering department at HP’s request so that
“Lab to Lab” contact may be established. If Problem Resolution Service Requests are
produced as a result of the Escalation, the procedure defined above for Problem Resolution
must be followed.






			
	 	 	 
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	 	4.4.	 	Escalation Records. Supplier will keep a record of all Escalation requests in the
Supplier’s Tracking System and update their current status.






	 	4.1.1	 	Escalation records will include, at a minimum, the items listed in Section
3.3.1 above and the following information:






	 	§	 	Date of initial request for Escalation
	 
	 	§	 	Names of individuals participating in the call
	 
	 	§	 	Date/s of subsequent call/s to HP Technical Support
	 
	 	§	 	Steps taken to diagnose and remedy the problem
	 
	 	§	 	Any Action Plan/s required for follow up or resolution
	 
	 	§	 	Date of Final resolution






	 	4.5.	 	Role of Technical Support Contact During Escalations. The Supplier’s Technical Support
Contact will prepare an Action Plan as quickly as possible and will make best efforts to
provide an Action Plan within four (4) hours after initial request for Escalation. This
Action Plan may be modified by mutual agreement of the parties.
	 
	 	4.6.	 	Monitor Phase. A Monitor Phase may be implemented by HP to evaluate the situation over
a period of time to verify that the problem has been resolved to the Customer’s
satisfaction. The monitor Phase states after a resolution is provided to the Customer.
When the problem has been resolved to the Customer’s satisfaction, the Monitor Phase is
terminated and the Escalation is closed by HP. Both HP and Supplier will coordinate
monitoring activities. HP will determine the length of the Monitor Phase.
	 
	 	4.7.	 	Closing an Escalation. When HP and the Customer agree that the problem has been
resolved satisfactorily or the situation no longer requires Escalation, the Escalation will
be closed by HP at the end of the Monitor Phase. The Tracking System will then be updated
as necessary by Supplier to record the results of the Monitor Phase, including any actions
taken, results of those actions, likelihood of problem recurrence and recommended future
actions.






	5.	 	OPERATIONAL PROVISIONS






	 	5.1.	 	Delivery. Supplier will ship Spares from, and accept returns shipped to its facilities
located in Bedford, MA and other locations agreed by HP and Supplier. Supplier will
promptly ship Spares and repair materials returned from HP. Unless HP requests a later
date, lead-time for Spares will be the same as identified in Exhibit B and lead-time to
repair returned Spares will not exceed fifteen (15) business days from receipt of
materials. If any returned materials are damaged and not repairable, Supplier will notify
HP within twenty-four (24) hours of receipt for disposition such as scrap at Supplier’s
location or return to HP.
	 
	 	5.2.	 	Priority Delivery. If HP is experiencing a critical support situation, Supplier will
use its best efforts to ship same day.
	 
	 	5.3.	 	RMA Procedure. HP will request an RMA # prior to return of any material to Supplier.
HP will provide quantity, part number/s of materials to be returned. Supplier will provide
the RMA# within one (1) business day. HP will not have to sort, separate in-warranty from
out-of-warranty, or perform any other screening before sending Spares to Supplier.
Supplier will promptly advise HP the quantities of in-warranty and out-of-warranty
materials returned. Supplier will provide an appropriate means for RMA requests. Email
and phone requests throught Supplier’s Technical Assistance Center will be used for RMA
processing.
	 
	 	5.4.	 	Term of Availability. Supplier will provide Spares and will repair/replace both in and
out of warranty Spares during the “Term of Availability” The Term of Availability for each
Spare is the period of time continuing from a minimum of five (5) years from the date
Product which Spare is used to support is removed from HP’s Corporate Price List (CPL) and
which ends upon written notification from Supplier. Supplier’s notification discontinuing
support must provide at least six (6) months notice to HP and identify the Spares affected.
Pursuant to Section 9.1.1 of the Agreement, Supplier will support HP’s order for “last buy”
quantities.
	 
	 	5.5.	 	Pricing. Purchase prices for Spares and for repair of out-of-warranty Spares are
identified in the Schedule of Spares. Pricing will be negotiated between the parties and
reviewed periodically. Pricing changes are subject to mutual agreement and must be
documented in writing. Spares shall be delivered FCA Supplier’s designated facility
(Incoterms 2000). Supplier is responsible to pay costs for shipping, packing, duties,
fees, insurance and related charges for shipments to HP from Supplier of Spares repaired or
replaced under warranty. HP is responsible to pay costs, for shipping, packing, duties,
fees, insurance and related charges for defective shipments to the Supplier.






			
	 	 	 
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	 	 	 	Warranty
claims resulting in no defect found (“NDF”) means a Product whose function was suspect, but
no specific fault was detected during Supplier’s performance of failure analysis. Supplier
will notify HP of an abnormally high level of NDF and will meet to develop a corrective
action plan. Should the NDF rate not drop to a reasonable level within 3 months, HP will
reimburse Supplier for the actual and reasonable cost associated with NDF screening and in
no event will such costs exceed an amount equal to the price paid by HP for such services
on the FRU.
	 
	 	5.6.	 	Non-Repairable Spares Warranty Recovery. The Schedule of Spares may document Spares
that are not economical to repair. HP will not return such Spares to Supplier but will
instead scrap those Spares and advise Supplier of the quantity of in-warranty Spares so
scrapped. Supplier will credit HP based on the current purchase price of the Spare in the
Schedule of Spares.
	 
	 	5.7.	 	Rights and Assistance to Repair. Supplier grants to HP the right to repair and have
repaired Spares for as long as HP chooses to support Products. In the event Supplier
chooses to discontinue support of Spares, Supplier will provide to HP, within thirty (30)
days of HP’s request (i) a list of components and software required to repair and maintain
Spares as well as Supplier’s approved suppliers for these components. Components which are
not readily available from sources other than Supplier shall be listed with Supplier’s part
numbers and purchase prices identified and made available for HP purchase. Components
having generic industry identification, not proprietary to Supplier, will be
cross-referenced to generic manufacturer part numbers. (ii) applicable test
specifications, test procedures, repair procedures, drawings, test programs and other
materials required to allow HP to repair and test Spares including a full description of
test equipment, with manufacturer’s model numbers, required to perform such tests. (iii)
reasonable assistance as HP may require. Supplier grants HP a perpetual, royalty free,
worldwide license to use, copy, modify and distribute any provided materials as required to
affect the purposes of this section. This license grant does not extend to commercially
available third party software and HP must purchase any such third party software.
	 
	 	5.8.	 	Quality. Supplier will mark all repaired Spares with the date of repair or ECO
revision. Spares will be new or be refurbished to meet all applicable electrical,
mechanical, firmware and cosmetic specifications and engineering documentation, including
the replacement of damaged or missing non-functioning parts. Upon request by HP, Supplier
will provide information reasonably needed by HP to understand quality and reliability
issues such as failure analysis data, reliability testing data, inspection histories, and
specifications as well as provide access to facilities and repair processes.
	 
	 	5.9.	 	Third Party Repair Services. HP may use a third party to manage aspects of its repair
processes. Upon HP’s request and subject to satisfactory credit approval by Supplier,
Supplier will provide HP’s third party repair center with the same support it provides to
HP. The third party repair center will be an Eligible Purchaser. Supplier understands the
repair center purchases are for HP’s benefit and agrees HP may work directly with Supplier
to take advantage of warranty, indemnification and other rights.
	 
	 	5.10.	 	Supplier Management Program. Supplier agrees to participate in HP’s Supplier
Management Program and meet with HP at HP’s offices, as requested up to twice per year, in
order to review Supplier’s performance, establish performance metrics to drive continuous
improvements, and discuss other areas of mutual concern.




6.0 Survival. In the event the Agreement terminates for any reason except for HP’s breach of its
obligations in this Service and Support Exhibit, this Service and Support Exhibit will continue as
a stand-alone contract through the end of the Term of Availability and Agreement terms that may be
applicable to service and support will be incorporated into and made a part of this surviving
Service and Support Exhibit. Agreement terms applicable to support include, without limitation:
warranty, delivery, indemnification, remedies, pricing, payment, confidentiality, quality and
general terms. In case of conflict, the original Service and Support Exhibit terms will take
precedence over the incorporated terms.




			
	 	 	 
	Hewlett-Packard Company
	 	Page 34 of 46
	 	 	 






 









 








APPENDIX I




STRATEGIC AND TECHNCAIL SUPPORT CONTACTS




Initial calls for Voltaire’s Technical Assistance are to go through:




Name:Tia Howell

Phone 1.800.voltaire

Email support@voltaire.com




The following are designated as Strategic Support Contacts:




	 	 	 	 	 	 	 
	Voltaire Inc	 	HP	 	 	 	 
	Name Bob Spear – Director, Customer Support &

Professional Services

	 	Name Mark Miller	 	 	 	 
	 
	 	 	 	 	 	 
	Address 54 Middlesex Turnpike, Bedford, MA 01730

	 	Address 200 Forest Street,
Marlboro, MA 01752
	 	 	 	 
	 
	 	 	 	 	 	 
	Phone 781.276.1579

	 	Phone 508-467-1671	 	 	 	 
	 
	 	 	 	 	 	 
	Fax 781.276.1561

	 	Fax	 	 	 	 
	 
	 	 	 	 	 	 
	Email bobs@voltaire.com

	 	Email Mark.O.Miller@hp.com	 	 	 	 






The following are designated as Technical Support Contacts:




	 	 	 
	Voltaire Inc	 	HP
	Name Gary Green

	 	Name Joe Woodworth
	 
	 	 
	Address 54 Middlesex Turnpike, Bedford, MA 01730

	 	Address 200 Forest Street, Marlboro, MA 01752
	 
	 	 
	Phone1.800.voltaire

	 	Phone 508-467-2853
	 
	 	 
	Fax 781.276.1561

	 	Fax
	 
	 	 
	Email garyg@voltaire.com

	 	Email Joseph.Woodworth@hp.com






			
	 	 	 
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	 	Page 35 of 46
	 	 	 






 









 






APPENDIX II




RESPONSE TIME SUMMARY:



Voltaire shall respond immediately to HP’s incidents reported via email with a return email
confirmation of receipt, which will also include a unique case/ticket number to be used for logging
and tracking purposes. Supplier will use best efforts to resolve Technical Assistance calls,
Problem Resolution calls and Escalation calls as soon as possible, using commercially reasonable
efforts to satisfy the response times specified below.




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Permanent Fix or
	 	 	 	 	 	 	 	 	Long Term Action
	HP Call/Problem	 	Voltaire Acknowledge	 	Initial Action	 	Fix or Workaround to	 	Plan (to achieve
	Classification	 	Problem Receipt	 	Plan/Status Update	 	HP	 	Permanent Fix)
	Escalation /BCS**

	 	30 minutes
	 	2-4 hours
	 	24-48 hours
	 	Continuous effort
	Critical/Priority 1

	 	30 minutes
	 	8 hours
	 	24- 48 hours
	 	Continuous effort
	Serious/Priority 2

	 	1 hour
	 	24 hours
	 	5 days
	 	80% within 45 days
	Medium/Priority 3

	 	4 hours
	 	1 business day
	 	10 days
	 	Next Release
	Low/Priority 4

	 	1 business day
	 	3 business days
	 	30 days
	 	Next Release








 




			
	**	 	BCS = Business Continuity Service





Call/Problem Classifications:





	 	 	Escalation /BCS: Product situation requiring immediate additional action by HP and
Supplier because the problem has not been satisfactorily resolved through normal response
channels. This situation is defined by HP and can only be declared to Supply by HP after HP’s
standard support escalation procedure.







	 	 	Critical/Priority 1: Emergency situation in which the Product is not usable, produces
incorrect results, loses information or data, or fails catastrophically in response to
internal errors, user errors or incorrect input files.







	 	 	Serious/Priority 2: Detrimental or serious situation in which there is a severe impact on
use or performance of the Product. A Serious situation may occur when, for example, a
Product experiences one or more inoperable commands or functions that
degrades its usability.







	 	 	Medium/Priority 3: Inconvenient situation in which the Product is usable but does not
provide a function in the most convenient or expeditious manner, but use of the Product
suffers little or no significant impact.







	 	 	Low/Priority 4: Noticeable situation in which the use of the Product is affected in some
way that is correctable by a temporary documentation change or Workaround to be permanently
corrected in the next scheduled release.







			
	 	 	 
	Hewlett-Packard Company
	 	Page 36 of 46
	 	 	 






 









 











APPENDIX III




SCHEDULE OF SPARES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	HP Assembly Part	 	 	 	 
	Product	 	Product Part #	 	#	 	Supplier Part #	 	Unit Price
	ISR9024 — Redundant power supply

	 	501S30020
	 	376169-B21
	 	501S30001
	 	*
	 
	 	 	 	 	 	 	 	 
	ISR9024 – Additional management board

	 	501S30020
	 	 	 	 	 	*
	 
	 	 	 	 	 	 	 	 
	IST9288 — sLB-24, 24 4X IB
ports modular line board

	 	501S41000
	 	376172-B21
	 	501D40030
	 	*
	 
	 	 	 	 	 	 	 	 
	IST9288 — sRBD, Router
blade drawer

	 	501S41000
	 	376168-B21
	 	501D30040
	 	*
	 
	 	 	 	 	 	 	 	 
	IST9288 — sFB-12, 12
connections fabric board

	 	501S41000
	 	376175-B21
	 	501D40050
	 	*
	 
	 	 	 	 	 	 	 	 
	IST9288 — sMB, Additional
management board

	 	501S41000
	 	376176-B21
	 	501D40080
	 	*
	 
	 	 	 	 	 	 	 	 
	IST9288 — sPSU, Additional
power supply unit

	 	501S41000
	 	376177-B21
	 	501D40100
	 	*
	 
	 	 	 	 	 	 	 	 
	Out of Warranty repair

	 	 	 	 	 	 	 	*








 




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




			
	 	 	 
	Hewlett-Packard Company
	 	Page 37 of 46
	 	 	 






 









 










Exhibit D

To Agreement No. XXXX-XXXXXX




Software and Documentation Warranty



To the extent Product includes or constitutes Software and with respect to related
Documentation, Supplier warrants and represents to HP, in addition to warranties set forth
in Section 6 of Exhibit B of the Agreement:





	1.	 	That Supplier has, as of date of delivery, clear title or sufficient
proprietary license rights in and to the Software and Documentation to grant HP any
license, lease or other non-ownership rights granted in and to the Software and
Documentation and that the Software and Documentation are free of any and all
restrictions, settlements, judgments or adverse claims that might adversely affect any
such right granted HP.






	2.	 	That the software made by Supplier will not (i) contain lock out devices or
have any virus, disabling device, time bomb, Trojan horse, back door or any other
harmful component, (ii) replicate, transmit or activate itself without control of a
person operating the computing equipment on which it resides, (iii) alter, damage or
erase any data or other computer programs without control of a person operating the
computing equipment on which it resides or (iv) contain any code, key, node lock, time
out or other function whether implemented by electronic, mechanical or means which
restricts or may restrict use or access to programs or data based on residency on a
specific hardware configuration, frequency or duration of use, or other limiting
criteria.






	3.	 	That the Software and Documentation, including accompanying trademarks,
copyrights and trade names, do not violate or infringe any patent, copyright,
trademark, trade secret or other proprietary right of any third party, that Supplier is
not aware of any facts upon which such a claim for infringement could be based and that
Supplier will promptly notify HP if it becomes aware of any claim or any facts upon
which a claim could be based. HP’s exclusive remedy and Supplier’s sole obligation in
respect of any breach of this warranty shall be as set forth in Section 13 of Exhibit
B.






	4.	 	That for a period of ninety (90) days from the date the Software is delivered
to HP (i) the media on which the Software is furnished will be free of defects in
materials and workmanship under normal use and (ii) the Software will substantially
conform to its published specifications. HP’s exclusive remedy and the entire
liability of Supplier under this limited warranty will be at Supplier’s sole option,
repair, replacement, credit of the amounts paid for or refund of the amounts paid for
Software if reported promptly to Supplier. This limited warranty extends only to HP.






			
	 	 	 
	Hewlett-Packard Company
	 	Page 38 of 46
	 	 	 






 









 











Exhibit E

To Agreement No. XXXX-XXXXXX




Flexibility Agreement




HP will provide Supplier with a forecast as specified in this Agreement. HP’s liabilities
to Supplier for Accepted Orders for Product are as follows:




	 	 	 	 	 	 	 	 	 
	Notice of	 	 	 	 	 	 	 	 
	Change	 	 	 	 	 	 	 	 
	Received by	 	 	 	 	 	 	 	 
	Supplier (Days	 	 	 	 	 	 	 	 
	Prior to	 	 	 	 	 	 	 	 
	Committed	 	 	 	 	 	 	 	 
	Delivery Date)	 	Increase Quantity	 	Decrease Quantity	 	Reschedule	 	Cancellation
	* days

	 	*

Supplier will use
commercially
reasonable efforts
to satisfy any
increase.
	 	*

HP shall not be
charged for any
decrease if it
promptly
reschedules
delivery of those
Products for
delivery within *
days of the
original delivery
date. Otherwise,
HP will pay for the
materials in
Supplier’s pipeline
required to support
the quantity of
Products not
rescheduled.
	 	If HP promptly
reschedules
delivery of the
Product for
delivery within *
days of the
original delivery
date, there will be
no charge.
Otherwise, HP will
pay for the
materials in
Supplier’s pipeline
required to support
the quantity of
Products not
rescheduled.
	 	*
	 
	 	 	 	 	 	 	 	 
	* days

	 	*

Supplier will use
commercially
reasonable efforts
to satisfy any
increase.
	 	*

HP shall not be
charged for any
decrease if it
promptly
reschedules
delivery of such
Products for
delivery within *
days of the
original delivery
date. Otherwise,
HP will pay for the
materials in
Supplier’s pipeline
required to support
the quantity of
Products not
rescheduled.
	 	If HP promptly
reschedules
delivery of the
Product for
delivery within *
days of the
original delivery
date, there will be
no charge.
Otherwise, HP will
pay for the
materials in
Supplier’s pipeline
required to support
the quantity of
Products not
rescheduled.
	 	*
	 
	 	 	 	 	 	 	 	 
	* days

	 	*

Supplier will use
commercially
reasonable efforts
to satisfy any
increase.
	 	*

HP shall not be
charged for any
decrease if it
promptly
reschedules
delivery of such
Products for
delivery within *
days of the
original delivery
date. Otherwise,
HP will pay for the
materials in
Supplier’s pipeline
required to support
the quantity of
Products not
rescheduled.
	 	If HP promptly
reschedules
delivery of the
Product for
delivery within *
days of the
original delivery
date, there will be
no charge.
Otherwise, HP will
pay for the
materials in
Supplier’s pipeline
required to support
the quantity of
Products not
rescheduled.
	 	*






			
	 
	 	 
	*  Omitted pursuant to confidential treatment request. The confidential portion has been
filed separately with the SEC.
	 	 	 
	Hewlett-Packard Company
	 	Page 39 of 46
	 	 	 






 









 






Exhibit F

To Agreement No. XXXX-XXXXXX




Quality Assurance Requirements.



Quality Responsibility: If HP identifies a quality problem with the Supplier, the Supplier
will provide appropriate technical personnel to meet with HP’s “Quality Engineering”
personnel to attempt to resolve the problem. Meetings will occur weekly, or more frequently
if requested by HP, until any quality issues are resolved. HP may require the Supplier
attend additional meetings as required to address quality/reliability issues identified by
HP.



Tracking and Reporting.



Functional Product Tracking. The Supplier may be required to provide both new
Products and Functional Products to HP. The Supplier must have an internal process
(including a database and physical separation) to identify and differentiate between new
Products and Functional Products. If applicable, HP will provide the HP Part Number to be
assigned to Functional Products.



Repair Data.



Data Collected. The Supplier must maintain complete records of Repairs performed on
all Non-Functional Products returned for Repair by HP (collectively “Repair Data”).
Individual trace ability will be based on each Returnable Product’s serial number. Repair
Data shall include, at a minimum, the following: HP part number, serial number, revision
level, failure code, cause of failure, NTF, MROC, DOA, AFR, Supplier original warranty
status, Supplier Repair warranty status, Supplier model number, Supplier part number,
Component consumption, date and Facility location where each Returnable Product unit has
undergone Repair, Repair procedure performed, and actual location/reference designator of
the Repaired or replaced Component on the Repaired Returnable Product. The foregoing
requirements are in addition to any related requirements which may be specified in the
Supplier Handbook.



Reporting. The Supplier will, within 10 of its Business Days after the end of each
month, report to HP all available Repair Data relevant to HP for the preceding month.



Record Retention. The Supplier will maintain the Repair Data for a particular
Returnable Product for at least three (3) years after the end of the Support Life of the
Product.



Warranty Status Reporting. Upon request by HP, the Supplier will provide HP with a
complete “Warranty Status Report.” The report will specify, by unique serial number, the
warranty status for each new Product and each Functional Product provided to HP by the
Supplier, or any subset thereof as is requested by HP.



Alternative Electronic Reporting. In lieu of the obligations in Sections 8.2 (b)
and (c) and Section 8.3 of these Support Terms for a particular Product, the Parties may
agree to implement an automated and/or electronic method of reporting the Repair Data for
the Product. The automated reporting method will be as frequently and in a format required
by HP. 



Account Status Reports. Upon written request from HP, the Supplier will furnish HP
a statement detailing the outstanding invoices issued to HP by the Supplier for Orders
placed under these Support Terms. HP may request from the Supplier a summary of all new
Products and all Functional Products provided to HP within a specified time period.



The Supplier will provide written documentation of its Repair procedures and meet other
requirements that may be required by HP.




			
	 	 	 
	Hewlett-Packard Company
	 	Page 40 of 46
	 	 	 






 









 








Exhibit G: Supplier Social & Environmental Responsibility Agreement




This Supplier Social & Environmental Responsibility (SER) agreement (“Agreement”) is dated this
                     [day] of                      [month], 2004, by and between Hewlett-Packard
Company, 3000 Hanover Street, Palo Alto, California 94304 (“HP”) and Voltaire, Inc., 54 Middlesex
Turnpike, Bedford, MA 01730, (“Supplier”).




RECITALS





	A.	 	This Agreement is intended to supplement any and all contracts and agreements between HP
and Supplier for the supply of goods or services by Supplier to HP (“Supply Contracts”).






	B.	 	The Parties wish to address in this Agreement how they may work collaboratively to
achieve the objectives of the HP Supplier Code of Conduct [http://www.hp.com/go/supplierE]





NOW THEREFORE, the Parties, and each of them, agree as follows:





	1.0	 	Supplier Responsibility






	 	1.1	 	Supplier confirms that it has read HP Supplier Code of Conduct
[http://www.hp.com/go/supplierE] and agrees with its statement of requirements.
	 
	 	1.2	 	Supplier will complete HP Supplier Social and Environmental Responsibility
(SER) questionnaires available at [http://www.hp.com/go/supplierE]
	 
	 	1.3	 	Supplier will be responsible for identifying any areas of its operations
that do not conform to HP’s Supplier Code of Conduct and for implementing and
monitoring improvement programs designed to achieve HP Supplier Code of Conduct.
	 
	 	1.4	 	Upon request by HP, Supplier will submit a report to HP describing actions
taken and progress made by Supplier to meet the requirements of HP’s Supplier Code of
Conduct.
	 
	 	1.5	 	Supplier will provide HP, or its nominated representative, on reasonable
notice, access to Supplier’s relevant records insofar as they relate to Supply
Contracts, in order to verify information provided in Supplier’s report.






	2.0	 	HP Responsibility






HP agrees that the report and records referred to will only be used for the purposes of
assessing the supplier’s progress in accordance with HP Supplier Code of Conduct and will
not be disclosed to any third party without Supplier’s prior written consent.




	3.0	 	Scope of Agreement






	 	3.1	 	This Agreement applies to all existing Supply Contracts.
	 
	 	3.2	 	This Agreement will remain in force so long as there are any Supply
Contracts in force. This Agreement will terminate when and if no Supply Contract is
in force.
	 
	 	3.3	 	This Agreement does not require either HP or Supplier to enter into any
Supply Contract nor to enter into any new or further agreement of any kind.










Parties








SIGNED




	 	 	 	 	 	 	 	 	 
	for and on behalf of HP	 	 	 	for and on behalf of Supplier
	 
	 	 	 	 	 	 	 	 
	Signature

	 	 	 	 	 	Signature	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name

	 	 	 	 	 	Name	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Position

	 	 	 	 	 	Position	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date

	 	 	 	 	 	Date	 	 
	 

	 	 
	 	 	 	 	 	 






			
	 	 	 
	Hewlett-Packard Company
	 	Page 41 of 46
	 	 	 






 









 






Exhibit I

To Agreement No. XXXX-XXXXXX




Supplier’s Software License Agreement









NOTICE: READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE (IF
DELIVERED INSTALLED ON ANY HARDWARE) OR OPENING THE PACKAGE CONTAINING THE SOFTWARE (IF DELIVERED
ON MEDIA SEPARATE FROM THE HARDWARE) ACCOMPANYING THIS AGREEMENT. OPENING THE PACKAGE, OR
ACCESSING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, CREATES A LEGALLY ENFORCEABLE
CONTRACT AND CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT
MODIFICATION. EXCEPT IN THE LIMITED RESPECTS EXPRESSLY PROVIDED HEREIN, CUSTOMER’S PURCHASE ORDER
OR SIMILAR TERMS SHALL NOT APPLY TO THIS AGREEMENT.



RETURN: IF YOU ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE TO
ALL OF THE TERMS OF THIS AGREEMENT, THEN WITHIN 10 DAYS, RETURN THE HARDWARE UNUSED OR THE PACKAGE
UNOPENED (AS THE CASE MAY BE) TO THE LICENSOR THAT PROVIDED THE SOFTWARE TO YOU.







This Software License Agreement (the Agreement), effective as of the date of Customer’s receipt of
the Software unless returned as specified above (the Effective Date), is entered into between
[Reseller’s Name], a                      corporation, with offices at                      (a reseller which is
authorized to sublicense the Software and Documentation, Licensor) and the Customer identified in
the Purchase Order issued to obtain the Software (Customer). The parties agree as follows:




1. DEFINITIONS.



Documentation means the user guide, technical specifications, help information and other
documentation delivered to Customer in paper, digital or electronic form with the Software.



Hardware means any Manufacturer router, switch, card or other appliance or equipment identified in
the Purchase Order and which is intended by Manufacturer to be operated in connection with the
Software.



Manufacturer means that certain third party which manufactures the Hardware, owns the Software and
Documentation and makes them available for redistribution by Licensor.



Purchase Order means Customer’s purchase order or other agreement to license the Software
(pursuant to the terms set forth herein) and purchase the Hardware, which order has been accepted
by Licensor, at its discretion.



Software means any Manufacturer computer program (in object code) identified in the Purchase Order
or otherwise delivered to Customer (e.g., pursuant to any separate support services arrangement).
Without limitation, Software may include firmware that is installed and executes on the Hardware,
or software that is provided on separate media and which is intended to be loaded and executed on
the Hardware, or software that is installed on the Hardware and which is intended to be loaded and
executed on Customer’s computer system for the purpose of operating the Hardware.



2. LICENSES.



2.1 Software. Subject to all terms and conditions in this Agreement, Licensor grants to Customer
a nonexclusive, nontransferable, nonsublicenseable right and license to use the Software without
modification, in accordance with the Documentation, and solely for Customer’s internal business
purposes in configuring and managing its InfiniBand networks. Customer agrees to use the Software
only on the Hardware on which it comes installed (or on which it is intended to be installed by
Customer); provided, in respect of certain Software for which the following use is
intended, Customer may install and use such Software on its internal computer systems, solely in
connection with operating the Hardware. Customer may make one copy of the Software for inactive
archival purposes.



2.2 Documentation. Subject to all terms and conditions in this Agreement, Licensor grants to
Customer a nonexclusive, nontransferable, nonsublicenseable right and license to use the
Documentation internally, and solely in connection with using the Software and Hardware.



2.3 Limitations. Customer may not make, and may not share or use concurrently, more copies of the
Software than the maximum number ordered and paid for. The Software is licensed as a single
product and Customer may not separate or use its component parts beyond the authorized number of
computers or CPUs. Customer acknowledges the installing and using the Software may result in
changes to the operating system environment.



2.4 License Control. Customer acknowledges that the Software may contain code or require devices
that detect or prevent unauthorized use of, or disable, the Software.



3. CONFIDENTIALITY.



3.1 Scope. The term Confidential Information means all trade secrets, know-how, inventions,
developments, software and other financial, business
or technical




			
	 	 	 
	Hewlett-Packard Company
	 	Page 42 of 46
	 	 	 






 









 






information of Licensor or any of its suppliers (including the Manufacturer) that is
disclosed by or for Licensor in relation to this Agreement, but not including any information
Customer can demonstrate is (a) rightfully furnished to it without restriction by a third party
without breach of any obligation to the disclosing party, (b) generally available to the public
without breach of this Agreement or (c) independently developed by it without reliance on such
information. All Software, Documentation and pricing information is Confidential Information.



3.2 Confidentiality. Except for the specific rights granted by this Agreement, Customer shall not
use or disclose any Confidential Information without Licensor’s written consent, and shall use
reasonable care to protect the Confidential Information. Customer shall be responsible for any
breach of confidentiality by its employees and contractors. Promptly after any termination of this
Agreement (or at Licensor’s request at any other time), Customer shall return all tangible
Confidential Information, permanently erase all Confidential Information from any storage media and
destroy all information, records and materials developed therefrom. Customer may disclose only the
general nature, but not the specific terms, of this Agreement without the prior consent of
Licensor.



4. PROPRIETARY RIGHTS.



4.1 Customer. Customer shall own all right, title and interest in and to all data and records
generated or stored by the Software.



4.2 Restrictions. Except as specifically permitted in this Agreement, Customer shall not directly
or indirectly: (a) use any Confidential Information to create any software or documentation that is
similar to any Software or Documentation; (b) disassemble, decompile, reverse engineer or use any
other means to attempt to discover any source code or underlying ideas, algorithms or organization
of the Software (except and only to the extent that these restrictions are expressly prohibited by
applicable statutory law); (c) encumber, sublicense, transfer or distribute any Software, or use
the Software for the benefit of any third party (e.g., service bureau arrangement); (d) copy,
create derivative works of or otherwise modify any Software or Documentation; or (e) permit any
third party to do so. Customer will promptly notify Licensor in writing of any unauthorized use,
reproduction or distribution of any Software.



4.3 Third Party Software. The Software may operate or interface with software or other technology
that is identified in the Documentation (In-Licensed Code) and which is licensed to Manufacturer
from, and owned by, third parties (Third Party Licensors). Customer agrees that (a) it will use
In-Licensed Code in accordance with this Agreement and any other restrictions specified in the
applicable license set forth or referenced in the Documentation, (b) no Third Party Licensor makes
any representation or warranty to Customer concerning the In-Licensed Code or Software and (c) no
Third Party Licensor will have any obligation or liability to Customer as a result of this
Agreement or Customer’s use of the In-Licensed Code.



4.4 No Implied Licenses. Except for the limited rights and licenses expressly granted hereunder,
no other license is granted, no other use is permitted and Licensor (and Manufacturer and its
licensors, as the case may be) shall retain all right, title and interest in and to the Software
and Documentation (and all patent rights, copyright rights, trade secret rights and all other
intellectual property and proprietary rights embodied therein). Customer agrees not to take any
action inconsistent with such ownership.



4.5 Markings. Customer shall not (and shall not permit any third party to) alter, obscure or
remove any trademark, patent notice or other proprietary or legal notice contained on any Software,
Documentation or packaging.



5. WARRANTY AND DISCLAIMERS.



5.1 Software. Licensor warrants to Customer that the unaltered Software will operate
substantially in conformance with the Documentation for a period of 90 days after the Effective
Date. Any warranty claim under this Section 5.1 must be made in writing during such 90-day period.
Licensor’s sole obligation and Customer’s exclusive remedy in respect thereof is to use reasonable
efforts to repair or replace the Software that Licensor determines, in its reasonable judgment, is
nonconforming or, at Licensor’s sole discretion, to accept return of such Software and refund to
Customer the price paid therefor.



5.2 Exclusions. The foregoing warranty shall not apply to any nonconformity resulting from
operating system or other software, or other hardware, nor shall it apply to any Software that was
(a) used, handled, operated, maintained or stored improperly, or in any manner not in accord with
Licensor’s instructions or recommendations, the Documentation or industry standard practice or (b)
repaired, altered or modified other than by or for Licensor.



5.3 Disclaimers. NEITHER MANUFACTURER NOR ANY THIRD PARTY LICENSOR MAKES ANY REPRESENTATION OR
WARRANTY HEREUNDER TO CUSTOMER CONCERNING THE SOFTWARE, DOCUMENTATION OR OTHERWISE. EXCEPT AS
SPECIFICALLY PROVIDED HEREIN, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED BY LICENSOR “AS IS”
WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S
REQUIREMENTS, OR THAT SOFTWARE OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS
CAN OR WILL BE FIXED. LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR
WRITTEN, INCLUDING WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING




			
	 	 	 
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FROM ANY COURSE OF DEALING OR
PERFORMANCE OR USAGE OF TRADE.



6. LIMITATION OF LIABILITY.



LICENSOR (AND MANUFACTURER AND THIRD PARTY LICENSORS) SHALL NOT BE LIABLE CONCERNING THE SUBJECT
MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B)
LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE
TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR
GOODWILL, OR (D) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE FEES PAID TO IT UNDER THIS
AGREEMENT FOR THE SOFTWARE GIVING RISE TO SUCH DAMAGES DURING THE 12-MONTH PERIOD PRIOR TO THE DATE
THE CAUSE OF ACTION AROSE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE
LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY
NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.



7. TERM AND TERMINATION.



7.1 Term. This Agreement shall commence on the Effective Date and continue in effect until
terminated as provided herein.



7.2 Termination. Customer may terminate this Agreement at any time for its convenience upon at
least 30 days prior written notice to Licensor. Either party may terminate this Agreement (a) if
the other party materially breaches a provision of this Agreement and fails to cure such breach
within 30 days (10 days in the case of failure to make any payment required under the Purchase
Order) after receiving written notice of such breach from the non-breaching party or (b)
immediately upon written notice, if the other party makes an assignment for the benefit of
creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of
any or all of the other party’s property, or the other party seeks protection under any bankruptcy,
receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a
proceeding is instituted against the other party and is not dismissed within 90 days, or the other
party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to
operate in the ordinary course. This Agreement shall automatically terminate without further
action by any party, immediately upon material breach by Customer of any limitation or restriction
set forth in Section 2.3 or 4.2.



7.3 Infringement. Licensor may terminate this Agreement upon written notice to Licensor at any
time and, after return of the Software, refund to Customer the depreciated value of the Software
(calculated as the license fees paid to Licensor, amortized on a straight-line basis over a 3-year
period). The foregoing states the entire liability of Licensor (and Manufacturer and its
licensors), and Customer’s exclusive remedy, with respect to any actual or alleged violation of
intellectual property rights by the Software, any part thereof or by its use or operation.



7.4 Effects of Termination. Upon termination of this Agreement for any reason, all rights,
obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that
accrued prior to the effective date of termination and any remedies for breach of this Agreement
shall survive any termination and (b) the provisions of Sections 3 (Confidentiality), 4
(Proprietary Rights), 5 (Warranties and Disclaimers), 6 (Limitation of Liability), 8 (General
Provisions) and this Section 7 shall also survive.



8. GENERAL PROVISIONS.



8.1 Intended Beneficiary. The parties agree that Manufacturer is an intended third party
beneficiary under this Agreement, and it may institute action (for itself or on behalf of any Third
Party Licensor) in law or equity against either party as may be necessary or prudent to effect
compliance with provisions regarding Confidentiality and Proprietary Rights and recover damages for
any breach thereof.



8.2 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior
negotiations, understandings or agreements (oral or written), between the parties about the subject
matter of this Agreement. No waiver, consent or modification of this Agreement shall bind either
party unless in writing and signed by the party against which enforcement is sought. The failure
of either party to enforce its rights under this Agreement at any time for any period will not be
construed as a waiver of such rights. If any provision of this Agreement is determined to be
illegal or unenforceable, that provision will be limited or eliminated to the minimum extent
necessary so that this Agreement will otherwise remain in full force and effect and enforceable.



8.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws
of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions.



8.4 Remedies. Except as specifically provided otherwise, each right and remedy in this Agreement
is in addition to any other right or remedy, at law or in equity. Customer agrees that, in the
event of any breach or threatened breach of Section 3 or 4, Licensor (or Manufacturer or Third
Party Licensor) will suffer irreparable damage for which there is no
adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable
remedies to prevent or restrain such breach or threatened breach, without the necessity of posting
any bond.




			
	 	 	 
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8.5 Notices. Any notice or communication hereunder shall be in writing and either personally
delivered or sent via confirmed facsimile, recognized express delivery courier or certified or
registered mail, prepaid and return receipt requested, addressed to the other party at its address
specified above or in the Purchase Order, or at such other address designated in a subsequent
notice. All notices shall be in English, effective upon receipt.



8.6 Assignment. This Agreement and the rights and obligations hereunder are personal to Customer,
and may not be assigned or otherwise transferred, in whole or in part, without Licensor’s prior
written consent. Any attempt to do otherwise shall be void and of no effect. Without Customer’s
consent, Licensor may assign this Agreement to Manufacturer. This Agreement shall be binding upon,
and inure to the benefit of, the successors, representatives and permitted assigns of the parties.



8.7 Independent Contractors. The parties shall be independent contractors under this Agreement,
and nothing herein will constitute either party as the employer, employee, agent or representative
of the other party, or both parties as joint venturers or partners for any purpose.



8.8 Compliance With Laws Customer shall comply with all applicable export control laws,
restrictions and regulations of any US or foreign agency or authority. Customer will not and will
not allow, directly or indirectly, the use, transmission, export, re-export or other transfer of
any product, technology or information it obtains or learns pursuant to this Agreement (or any
direct product thereof) in violation of any such law, restriction or regulation. Customer shall be
responsible for obtaining any necessary license or approval and otherwise complying with the latest
US export regulations. Customer agrees to comply with all other applicable regulatory, statutory
and treaty requirements, and not to place Licensor (or Manufacturer) in jeopardy of not complying
with any such requirements. Customer agrees to defend and indemnify Licensor from and against any
penalties, fines, damages, liabilities, losses, costs and expenses (including reasonable attorneys’
fees) arising out of any claim that the Software, Documentation or other information or materials
provided by Licensor were exported or otherwise accessed, shipped or transported in violation of
applicable laws and regulations.



8.9 License to the Government. If any user of the Software or Documentation is a department,
agency or other entity of the United States Government, the use, duplication, reproduction,
modification, release, disclosure or transfer of the Software and Documentation is restricted in
accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The
Software is commercial computer software and the Documentation is commercial computer software
documentation, and their use is further restricted in accordance with the terms of this Agreement.



8.10 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND
LIABILITY AND REMEDY LIMITATIONS ARE MATERIAL BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY
HAVE BEEN TAKEN INTO ACCOUNT BY EACH PARTY AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE
GIVEN BY EACH PARTY HEREUNDER AND IN THE DECISION TO ENTER INTO THIS AGREEMENT.



8.11 Acknowledgment. Customer acknowledges that (a) it has read and understands this Agreement,
(b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement
has the same force and effect as a signed agreement, (d) Licensor requires identification of the
Customer before issuing this license and (e) issuance of this license does not constitute general
publication of the Software, Documentation or any other Confidential Information.





			
	 	 	 
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EXHIBIT J




HP Software License Terms




[XC EULA TO BE INSERTED]




EXHIBIT K




Third Party Code and Licenses Included in Software




HCA host stack:





	 	•	 	The LINUX operating system is a free software program subject to the GNU
General Public License and its terms. A copy of such license can be found at
www.gnu.org/licenses or obtained from Voltaire upon request.
	 
	 	•	 	The MVAPICH software was developed by The Ohio State University’s
Network-Based Computing Laboratory (NBCL) headed by Professor Dhabaleswar K. Panda.
Copyright (c) 2002 The Ohio State University. All rights reserved. The use of such
software is subject to the terms of a Copyright Agreement, a copy of can be found at:
http://nowlab.cis.ohio-state.edu/projects/mpi-iba.
	 
	 	•	 	MPICH is a freely available, portable implementation of MPI. Copyright
in MPICH have been asserted by the University of Chicago and the
Mississippi State University (c) 1993. The use of such software is subject to the
terms of a copyright and disclaimer notice, a copy of can be found at:
http://nowlab.cis.ohio-state.edu/projects/mpi-iba/LICENSE.mvapich2.TXT






			
	 	 	 
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