EX-10.13



 





Exhibit 10.13




December 16, 2005




Addendum 1




TO




OEM PURCHASE AGREEMENT PRO10804-100804




BY AND BETWEEN




HEWLETT-PACKARD COMPANY




AND




VOLTAIRE INC.





HP
CONFIDENTIAL



 









 





ADDENDUM 1

TO THE OEM PURCHASE AGREEMENT PRO10804-100804



This Addendum 1 (the “Addendum”) to the OEM Product Purchase Agreement (dated October 8,
2004, (the “Agreement”)), by and between Hewlett-Packard Company, and its Subsidiaries,
divisions and affiliates (“HP”) and Voltaire Inc., (“Voltaire”) is made as of December 16, 2005,
(the “Effective Date of the Addendum”).



WHEREAS, the parties desire that Voltaire provide to HP certain software described herein not
currently covered under the Agreement:



NOW THEREFORE, the parties hereby agree as follows:





	1.	 	Except as otherwise specifically modified herein, all of the terms, covenants and conditions
in the Agreement shall remain in effect. In the event of a conflict among the terms and
conditions of this Addendum and the Agreement, the following order of precedence shall
prevail:






	 	a.	 	this Addendum (including any Exhibits to the Addendum), and
	 
	 	b.	 	the Agreement






	2.	 	The terms of the Agreement shall apply to this Addendum (such as, for example, taxes,
confidentiality, limitation of liability), except as expressly set forth below.






	3.	 	For the purposes of this Addendum only, the following definitions will apply in addition to
those definitions in the Agreement:






	 	a.	 	“Complete Copy” means the Program which includes (i) a master copy of
the Program and (ii) all Documentation and technical manuals for the Program, each in
the form(s) and on the media described in Exhibit A.
	 
	 	b.	 	“Documentation” means the manuals and other documentation (in
electronic form and/or hard copy, as the case may be) that Voltaire has created for the
Program and any other existing documentation and information regarding the Program
which HP reasonably requests for evaluation and use in connection with such Program as
contemplated herein, including those items listed and described in Exhibit A
hereto. Documentation will be provided in English only and shall be of a type and
quality as the Program documentation that Voltaire has previously provided under the
Agreement.
	 
	 	c.	 	“Enhancements” mean all present and future modifications, new features,
new functionalities, upgrades or other new versions of the Program or Documentation
(other than bug fixes, error corrections and minor updates) that are specifically
identified and added to this Addendum after the Effective Date of the Addendum pursuant
to Section 4.d.
	 
	 	d.	 	“Final Copy” means a Complete Copy of the Program that has been
reviewed and accepted by HP pursuant to Section 4.b hereof.
	 
	 	e.	 	“HP Product(s)” means any product manufactured or distributed by HP,
including all supported configurations and associated peripherals that runs or is
compatible with a Linux operating
system on an industry-standard computing platform or any other operating environment
or hardware platform.






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	 	f.	 	“Program” means the software program, in object code format, listed and
described on Exhibit A hereto, including all Updates and Enhancements thereto
that are provided by Voltaire pursuant to the terms of this Addendum. The Program is
intended to be installed and operated only on the operating environment(s) specified in
Exhibit A. To avoid uncertainty, Programs are not the same as and shall not be deemed
to be “Software” as such term is used in the Agreement.
	 
	 	g.	 	“Intellectual Property Rights” means patent rights, copyrights, moral
rights, trade secret rights and other proprietary rights.
	 
	 	h.	 	“Voltaire Materials” means, collectively, the Programs, Updates,
Enhancements, Specifications and Documentation.
	 
	 	i.	 	“Updates” mean all present and future bug fixes, error corrections and
other minor updates of the Program or Documentation, but expressly not including any
Enhancements.






	4.	 	Delivery And Acceptance






For purposes of this Addendum only, the following delivery and acceptance procedures shall
apply:




	 	a.	 	Delivery. Voltaire agrees to deliver to HP a Complete Copy of (i) each
Program listed in Exhibit A as of the Effective Date of this Agreement and (ii)
all Updates to the Program no later than the date on which such Updates are delivered
to any other of Voltaire’s distributors or partners and (iii) all Enhancements pursuant
to any agreement under Section 4.d. HP will have the right to test and evaluate the
Program and Enhancement(s) (but not Updates) under the acceptance procedure described
in 4.b below.
	 
	 	b.	 	Acceptance.
	 
	 	 	 	Acceptance of Program. HP will have thirty (30) days from the date of receipt of a
Complete Copy of the Program to evaluate the Program for conformity with the
applicable specifications in the relevant Documentation, and either accept, return
for rework, or reject the Program. HP will be entitled to test and evaluate any
Program internally by whatever means it deems appropriate consistent with Voltaire’s
rights in the Program and subject to the terms of this Addendum. Voltaire hereby
grants to HP the rights set forth in Section 5.b but only as necessary for HP to
perform its evaluation hereunder. HP may only reject a Program if it does not
comply with the then current version of the relevant Specification; provided, no
Program may be rejected for any noncompliance attributable to any HP Product or
other technology provided by HP. If HP rejects a Program, it must provide written
notice of rejection within such 30-day period and include a detailed description of
all non-conformities. If HP returns a Program for rework, Voltaire agrees to use
commercially reasonable efforts to correct the listed defects and resubmit the
Program for re-evaluation under the same acceptance procedure within 7 days or such
longer period as agreed to by the parties. In the event HP rejects a Program, and
Voltaire fails to correct the nonconforming Program within a reasonable time, then
(a) the parties may agree that Voltaire will have additional time to correct such
Program or (b) the parties may agree to eliminate such non-conforming Program from
this Agreement, such agreement not to be unreasonably withheld.
	 
	 	 	 	Acceptance of Documentation. HP will have thirty (30) days from the date of receipt
of a






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	 	 	 	Complete Copy of the Program to evaluate the associated Documentation, and
either accept, return for rework, or revise the Documentation pursuant to HP’s
rights under Section 5 below. If HP returns Documentation for rework, Voltaire
agrees to correct the listed defects and resubmit the Documentation for
re-evaluation under the same acceptance procedure within 14 days or such longer
period as agreed to by the parties.
	 
	 	 	 	To avoid uncertainty, each Program shall be subject this Section 4.b only once, when
it is first delivered to HP.
	 
	 	c.	 	Final Copy. Voltaire agrees to deliver to HP a Final Copy of each
Program simultaneous with its general availability by Voltaire.
	 
	 	d.	 	Enhancements. During the term of this Addendum, HP may request that
Voltaire develop an Enhancement to any Program. In such event, the parties agree to
negotiate in good faith mutually agreeable terms and conditions of such implementation
(such as, for example, requirements specification, price and schedule applicable to
such Enhancement). The definitive agreement, if any, regarding each Enhancement shall
be set forth in a separate writing executed by the parties.






	5.	 	Rights Granted






During the term of this Addendum and subject to all terms and conditions herein (including
without limitation, payment of all fees), Voltaire agrees to grant HP the rights expressly
provided in this Section 5.




	 	a.	 	Program.






	 	i.	 	Rights. Subject to the requirements of Section 5.a.ii,
Voltaire hereby grants and agrees to grant to HP, under all of Voltaire’s
Intellectual Property Rights embodied to the Program (including source code to
Program), a non-exclusive, worldwide right to use, support, offer, sell,
reproduce, display and distribute (both directly and indirectly) the Program
solely in conjunction with HP Product(s). Such rights will include the right
of HP to distribute through HP Subsidiaries and to permit HP-authorized
distributors, resellers, OEM’s and other third parties to achieve the
foregoing. In addition, Voltaire grants HP a non-exclusive, worldwide right to
modify and distribute, in binary versions only, the Program for purposes of
correcting defects. HP Engineering may develop and issue directly to Customers
patches/bug fixes to the Program 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.
	 
	 	ii.	 	Reproduction and Distribution. Voltaire and HP agree
that HP’s right to reproduce and distribute the Program shall be pursuant to
the following method. Activation Key Method — Voltaire will deliver to HP a
copy of the Program via such media as the parties may mutually agree (such as,
for example, CD), from which HP may make unlimited copies. Together with
delivery of the Program, Voltaire will deliver to HP activation keys for the
Program. The copies made by HP will be activated by the end user (subject to
the terms described in Section 5.d) who inserts the activation key supplied
with the Program.






	 	b.	 	Demonstration and Evaluation. Voltaire hereby grants and agrees to
grant HP, under all of






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	 	 	 	Voltaire’s Intellectual Property Rights embodied in the Program,
a non-exclusive, worldwide, royalty-free license right to use reproduce, display,
translate, import, disclose, and distribute the Program in whole or in part, for
purposes of testing and evaluation pursuant Section 4.b (Acceptance), support, customer
evaluation, demonstration, HP-internal development, marketing and promotional
activities in each case solely in conjunction with HP Products. To avoid uncertainty,
if any copy of the Program that is used as permitted under this Section 5.b license is
later used (whether by HP or any third party) for any purpose OTHER THAN AS PERMITTED
IN THIS SECTION, then such Program license shall be subject to the Per Copy Fee under
Section 8.
	 
	 	c.	 	Documentation. Voltaire hereby grants and agrees to grant to HP, under
all of Voltaire’s Intellectual Property Rights embodied in the Documentation, a
non-exclusive, worldwide, right to use, reproduce, display, translate, import, disclose
to customers, distribute to customers, modify and prepare derivative works or
compilations of: (a) the Documentation; and (b) modifications, derivative works and
compilations based upon the Documentation for use with a Program. These rights are
exercisable in any medium. Such rights will include the right of HP to distribute
through HP Subsidiaries and to permit HP-authorized distributors, resellers, and other
third parties to achieve the foregoing. The right to modify and prepare derivative
works and compilations is granted solely for the purposes of (i) combining
documentation of more than one program or product, (ii) condensing Documentation, (iii)
localizing Documentation, (iv) formatting and preparing Documentation for user
accessibility and (v) updating Documentation as appropriate to account for changes to
the associated Program. HP shall be solely responsible for any and all claims arising
from errors or misrepresentations in documentation caused by its reproductions,
translations, compilations, derivatives works and other modifications of the
Documentation.
	 
	 	d.	 	Third Parties. HP agrees that it shall pass through substantially
similar terms, conditions, disclaimers and limitations as agreed between HP and
Voltaire in this Addendum to any distributor, reseller, OEM, end user or other third
party, and HP agrees that Voltaire is entitled to protect its rights in the Program in
the event of any infringement by such third party.
	 
	 	e.	 	Utility Services Business. Voltaire and HP agree that the restriction
in Section 6.d.c below shall not be deemed to prevent the use by HP of the Voltaire
Materials in connection with utility services business operated by HP;
provided, that HP pays Voltaire the applicable Per Copy Fee pursuant to Section
8.a after any HP customer contracts for use of the corresponding portion of the utility
service (whether such use is made by the customer or by HP for the benefit of the
customer); and provided further, in no event shall any copy of the Program be
used by (or for the benefit of) more than one (1) HP customer.






	6.	 	Covenants And Restrictions






	 	a.	 	Copyright Notices. Voltaire and HP agree that a second HP copyright
notice in HP’s standard copyright notice form may be added to any authorized HP
modification of Documentation. HP agrees it will not remove any copyright notice or
proprietary marking of Voltaire from a Program or Documentation.
	 
	 	b.	 	Third Party Code. The Program may operate or interface with third
party code or other third party technology (including open source or freeware) that is
identified in Exhibit K attached to this Addendum (“Third Party Code”) and
which is provided to Voltaire from and owned by third
parties (“Third Party Owners”). Voltaire will promptly inform HP of its
intention to






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	 	 	 	incorporate Third Party Code in any Update or Enhancement of the
Program within a reasonable time after completion of any such agreement with such
third party. At such time Voltaire will identify the specific technical details of
the Third Party Code to be included. The parties agree that Exhibit K attached to
the Agreement is deleted and replaced in its entirety by Exhibit K attached to this
Addendum.
	 
	 	c.	 	Third Party Requirements. HP agrees that (a) it will use Third Party
Code in accordance with this Addendum and any other restrictions specified for the
Third Party Code as set forth or referenced in Exhibit K, (b) no Third Party Owner
makes any representation or warranty to HP concerning the Third Party Code or Program
and (c) no Third Party Owner will have any obligation or liability to HP as a result of
this Addendum or HP’s use of the Third Party Code. Voltaire represents and warrants
that, to its knowledge and understanding, it is not aware that any of the Third Party
Code licenses set forth or referenced in Exhibit K prohibit or otherwise prevent HP
from using the Programs as set forth in this Addendum.
	 
	 	d.	 	Restrictions. Except as otherwise expressly provided herein, HP will
not (a) disassemble, decompile or reverse engineer or otherwise try to discover any
source code or underlying structures, ideas or algorithms of any Program, Update or
Enhancement without prior written authorization from Voltaire, except and only to the
extent these restrictions are expressly prohibited by applicable statutory law and then
only as necessary to ascertain interfaces, (c) encumber, sublicense, transfer, rent,
lease or use the Voltaire Materials for the benefit of any third party (e.g.,
time-share or service bureau arrangement), (d) copy, adapt, create derivative works of,
translate, localize, port or otherwise modify any Voltaire Materials, (e) use the
Voltaire Materials, or allow the transfer, transmission, export or re-export of all or
any part or any product thereof, in violation of any export control laws or regulations
of the United States or any other relevant jurisdiction, (f) reproduce or distribute
copies of the Program except in accordance with the Activation Key Method described in
Section 5.a.ii or (g) permit any third party to engage in any of the foregoing
proscribed acts.






	7.	 	Program Maintenance And Support






Voltaire will provide support to HP for the Program in the same manner as it provides support
for Software pursuant to the terms of Exhibit C of the Agreement.




	8.	 	Payment






	 	a.	 	Payment. HP agrees to pay Voltaire Per Copy Fees in accordance with
Exhibit B of this Addendum.
	 
	 	b.	 	Audit. Upon thirty (30) days prior written notice to HP, Voltaire may,
at its own expense, appoint a nationally recognized independent auditor, to whom HP has
no reasonable objection, to audit and examine such records at HP’s offices during
normal business hours, solely for the purpose of confirming the accuracy of payments
hereunder. Such audit may be made no more often than once every twelve (12) calendar
month period. In the event that an audit reveals an overpayment by HP, Voltaire agrees
to promptly refund or credit HP for such overpaid amount. In the event that such audit
reveals an underpayment by HP, HP agrees to promptly pay Voltaire the amount of such
underpayment. This right of audit will be subject to Voltaire’s auditor executing HP’s
standard Confidential Disclosure Agreement.







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	9.	 	Warranty And Intellectual Property Protection





	 	a.	 	Program Warranty. Voltaire makes the same warranties to HP regarding
the Program as the warranties for “Software” provided in
Exhibit D of the Agreement.
	 
	 	b.	 	Warranty Disclaimers and Exclusions. The warranty exclusions,
disclaimers of warranties and similar limitations for “Products,” “Software” and
“Documentation” set forth in the Agreement (including without limitation, at Sections
6.6 and 6.9 in Exhibit B thereof) shall also apply to the same extent with respect to
the Voltaire Materials under this Addendum.






	10.	 	Confidential Information






	 	a.	 	Programs. The Program in object code form and related Documentation
provided to HP hereunder are deemed non-confidential; provided, however, HP shall
restrict the provision of such Voltaire Materials in accordance with its obligations
under Section 5.d of this Addendum.






	11.	 	Miscellaneous Clauses






	 	a.	 	Term and Termination. This Addendum shall have the same term as the
Agreement.
	 
	 	b.	 	Counterparts. This Addendum may be executed by facsimile and in
counterparts, each of which will be deemed an original and together which shall
constitute one and the same instrument.
	 
	 	c.	 	Government Rights. If any use of the Programs 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
Programs and Documentation is restricted in accordance with FAR 12.212 for civilian
agencies and DFAR 227.7202 for military agencies. The Programs are commercial computer
software and the Documentation is commercial computer software documentation, and their
use is further restricted in accordance with the terms of this Addendum and the
Agreement.
	 
	 	d.	 	Exhibits:
	 
	 	 	 	Exhibit A – Description of Program and Documentation, Form and Media of Program and
Documentation
	 
	 	 	 	Exhibit B - Pricing
	 
	 	 	 	Exhibit C - Account/Relationship Managers
	 
	 	 	 	Exhibit K - Third Party Code





	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	Agreed:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	HEWLETT-PACKARD COMPANY	 	 	 	VOLTAIRE, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Sue Oliveira
	 	 	 	By:
	 	/s/ Mark Favreau	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Print Name: Sue Oliveira	 	 	 	Print Name: Mark Favreau	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title: VP Supply Chain	 	 	 	Title: EVP & GM	 	 








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EXHIBIT A




PROGRAMS




DESCRIPTION OF PROGRAM AND DOCUMENTATION



Program: Voltaire GridStack, Ver. 3.4



Program Operating Environment: Red Hat Advanced server 4 (RH EL4) for IA32, IA64 and x86_64
Suse SLES 9 for IA32, IA64 and x86_64



Documentation: User manual and release notes



Support and Build Tools: None




FORM AND MEDIA FOR PROGRAM AND DOCUMENTATION



Program Form/Media: Electronic



Documentation Form/Media: Electronic



Sales Tools Form/Media: Electronic



Support and Build Tools Form/Media: N/A






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EXHIBIT B




PRICING



Per Copy Fee.





HP
agrees to pay Voltaire a fee in the amount of * USD for each copy of the Program
that HP (or any of its affiliates, distributors or other channel partners) uses according to
the terms and conditions in Section 5 of this Addendum or distributes to an end user for use
in conjunction with one (1) HP Product (“Per Copy Fee”). Such Per Copy Fee will
include the right to reproduce and distribute associated Documentation (as described in this
Addendum).



Payment.





Per Copy Fees will accrue upon distribution of any copy of the Program for use with an HP Product
internally or by an end user. All accrued Per Copy Fees will be paid by HP to Voltaire within *        
* days after the end of each HP fiscal quarter, which ends on the last day of each
January, April, July and October. Payments will be accompanied by a report stating the HP part
number, product description, number of copies of the Program distributed in the relevant quarter,
and the calculation for the Per Copy Fee payment.






 




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




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EXHIBIT C




ACCOUNT/RELATIONSHIP MANAGERS




	 	 	 
	HP
	 	VOLTAIRE
	Elaine Carroll
	 	Garrett Van Siclen
	Commodity Manager
	 	Corporate Account Executive
	Hewlett Packard
	 	Voltaire, Inc.
	200 Forest Street
	 	6 Fortune Drive, 3rd floor
	Marlboro, MA 01752
	 	Billerica, MA 01821-3917
	Tel: (508) 467-9815
	 	Tel: (978) 439-5425
	Fax: (508) 467-3785
	 	Fax: (978) 439-5401






DESIGNATED RECIPIENT FOR NOTICE




	 	 	 
	HP
	 	VOLTAIRE
	Mark Miller
	 	Mark Favreau
	Product Manager
	 	EVP and GM North American Operations
	Hewlett Packard
	 	Voltaire, Inc.
	200 Forest Street
	 	6 Fortune Drive, 3rd floor
	Marlboro, MA 01752
	 	Billerica, MA 01821-3917
	Tel: (508) 467-1671
	 	Tel: (978) 439-5454
	Fax: (508) 467-3785
	 	Fax: (978) 439-5401







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EXHIBIT K




Third Party Code Included in Software and Programs




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






	•	 	The uDapl and kDapl software was developed by the DAT
collaborative. The DAT Collaborative is an industry group that
was created to define and submit for standardization a set of
transport-independent, platform-independent Application
Programming Interfaces that exploit the RDMA (remote direct
memory access) capabilities of next-generation interconnect
technologies such as InfiniBand, and iWARP. The code is being
provided under one of the available licensing scheme – CPL
(Common Public License 1.0), GPL ( GNU general public license) or
BSD license. Information about the Dapl code licensing could be
found at http://cvs.sourceforge.net/viewcvs.py/dapl/




The following rights would be applicable once Voltaire starts using the OpenIb source code as the
base for the stack development





	•	 	OpenIB software is developed by OpenIB alliance. OpenIB source code is distributed under
the GPL and OpenIB BSD. Information about the OpenIB could be found at
http://www.openib.org/license.html






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