in Recipient’s possession prior to the date of Discloser’s disclosure to Recipient and nototherwise restricted as to disclosure; or (c) disclosed to Recipient without restriction by a thirdparty who had a right to disclose and was not otherwise under an obligation of confidence.Information or materials shall not be deemed to be “available to the public” or to be “inRecipient’s possession” merely if such information or materials can be reconstructed, combined orpieced together from multiple sources that are available to the public or Recipient if no one ofthose sources actually leads one to the entire combination, together with its meaning andimportance.**“Customer”**means a third party customer of Sourcefire specified in an Order.**“Do Not Ship List”**means a continually updated list of individuals, entities and jurisdictions towhich Products and Other Products are forbidden to be shipped pursuant to applicable Laws.**“Intellectual Property”**means all present and future copyrights, trade secrets, trademarks, servicemarks, patents, patent rights, utility models, industrial property rights, mask works, inventions,processes, designs, methods and all other intellectual and proprietary rights, including allapplications and registrations with respect thereto, arising under the laws of any country orjurisdiction worldwide.**“Law”**means any statute, law, regulation, ordinance, rule, judgment, order, decree, permit,concession, grant, franchise, license, agreement, directive, guideline, policy or rule of commonlaw, or any governmental requirement or other governmental restriction or similar form of decisionor determination, or any interpretation or administration of any of the foregoing by any national,state or local government (or any association, organization or institution of which any of theforegoing is a member, or to whose jurisdiction any thereof is subject, or in whose activities anythereof is a participant), whether now or hereafter in effect.**“Manufacturing Facility”**means (a) a manufacturing facility owned and controlled by Premio, or (b)a third party manufacturing facility affiliated with Premio that has been approved for use pursuantto Section 13.3 at which (in either case) Premio will manufacture, assemble and ship Products andOther Products, as applicable, for a particular Order.**“Order”**means a purchase order submitted by Sourcefire to Premio that specifies the Product(s) thatare to be manufactured by Premio and shipped by Premio to a Customer and/or the Other Product(s)that are to be shipped by Premio to a Customer.“**Other Product(s)**” means a product or component identified either in: an SOW as an “Other Product”,a product or component that is consigned to Premio by Sourcefire or Sourcefire’s supplier, and thatis not a “Product” to be manufactured by Premio which in either case is to be distributed by Premioto Customers as requested by Sourcefire pursuant to an Order.“**Other Product Price**” means the price of the Other Product(s) as referenced in an SOW.
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**“Product”**each Sourcefire product identified in an SOW that will be manufactured by Premio inaccordance with the Specifications, excluding any Other Product (as defined above).**“Product Price”**means the sale price of the completely manufactured Product as referenced in an SOWto be charged to Sourcefire by Premio which price includes the cost of all components,manufacturing and assembly costs, packaging costs and all related services, but excludes carriershipping costs, freight charges, any customs duties and value added tariffs and similar type oftaxes.**“Specifications”**means the design, engineering, functional and/or technical specifications for eachProduct including, but not limited to, Bill of Materials, assembly drawings, process documentation,test specifications, current revision number and all applicable third party components. TheSpecifications for each Product will be set forth in the applicable SOW and other documentationprovided by Sourcefire.**“Software Image”**means the applicable software for each Product provided by Sourcefire which whenintegrated by Premio with the hardware components listed in the Bill of Materials, will form suchProduct.**“SOW”**means each Statement of Work attached to this Agreement that sets forth the scope of servicesto be provided by Premio to Sourcefire with respect to the manufacturing, packing, delivery andwarranty returns of Products and Other Products, as applicable.**1. RELATIONSHIP OVERVIEW**1.1. Manufacture and Supply Relationship. This Agreement will govern all transactionsbetween the Parties with respect to (a) the supply of all components included in the Bill ofMaterials, (b) the manufacture of Products by Premio including, but not limited to, the design,testing and configuration services, production and supply chain process and quality controlprocedures to be implemented by Premio while manufacturing Products, (c) the shipment of Productsand Other Products by Premio to Customers, and (d) the return of Products and Other Products byCustomers to Premio.1.2. Statements of Work. The Parties may enter into one or more SOWs during the term ofthis Agreement which may set forth the Specifications and other relevant details with respect tothe design, testing, manufacturing, shipment, delivery and warranty return procedures for eachProduct and any Other Products. Each SOW will expressly reference this Agreement, shall be signedby both Parties and will be attached hereto as an exhibit and incorporated by reference into thisAgreement. The Parties may enter into one SOW for all the Products and Other Products, or enterinto separate SOWs for one or more Products and Other Products. In the event of a conflict betweenthe terms of this Agreement and the terms of an SOW, the terms of the SOW will control with respectto such conflict, unless specifically set forth otherwise in this Agreement.1.3. Program Manager/Team. Sourcefire and Premio each shall designate a program manager(each, a “Program Manager”) who shall be the principal point of contact for each Party forall matters relating to this Agreement.
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**2. PRODUCT MANUFACTURING**2.1. Product Specifications. Premio shall provide Sourcefire with Premio’s proposedmanufacturing procedure instructions (“MPI”), testing procedure instructions(“TPI”) and quality management system (“QMS”) before manufacturing Products, unlessspecified otherwise in an SOW. Premio shall manufacture all Products in accordance with (a) theSpecifications, (b) the manufacturing requirements set forth in Section 2.4, and (c) the quantitiesand other terms set forth in each Order.2.2. Changes to Product Specifications. At any time and from time to time, Sourcefiremay, by written change order, request changes to the Specifications for any Product (“RequestedChange Order”). Upon receipt of the Requested Change Order, the Parties agree that: (a) Premioshall notify Sourcefire in writing of any impact information as deemed relevant and material byPremio, particularly with respect to any terms of this Agreement or any SOW, including, withoutlimitation, cost, Bill of Materials, inventory, delivery time and lead times, Product Prices, laborcosts and any other additional costs associated therewith; and (b) Premio will not proceed with achange in the manufacturing process to implement the requested modified Specifications for suchProduct until: (i) the Parties further agree to a final written change order for suchSpecifications (“Final Change Order”) incorporating any and all of the Requested ChangeOrder and any changes to the Quarterly Forecast (as defined in Section 5.1), this Agreement and theapplicable SOW reflecting the impact information provided by Premio including, without limitation,Product Prices, delivery and lead times, Bill of Materials and costs and the effective date of suchFinal Change Order; and (ii) Sourcefire authorizes the manufacturing of the Products based upon theFinal Change Order commencing on the effective date of such Final Change Order. Premio will notrefuse to implement any changes to any Specifications unless Premio reasonably determines that therequested changes are incapable of being implemented in a commercially reasonable manner.2.3. Approval of Launch Processes. Premio will adhere to the following production processin addition to the processes set forth in each applicable SOW for each Product:     (a) Prototype. Premio will initially build a prototype of each Product based on theSpecifications for such Product. Premio will then test such prototype in accordance with thetesting requirements set forth in the TPI and SOW. Sourcefire shall clearly specify all tests thatare required to be performed on the Product by Premio in this Agreement or any SOW, and anyadditional testing or certifications not identified in this Agreement or SOW shall be atSourcefire’s expense. Upon Sourcefire’s request, Premio will submit to Sourcefire any availabletest results that are derived from the tests required by this Agreement and all SOWs.     (b) First Article Production. If Sourcefire, in its sole discretion, determines thatthe prototype of a Product conforms to all Specifications and satisfies all of Sourcefire’s testingrequirements, then Premio shall proceed to the first article production of at least twenty (20)units of such Product, unless Sourcefire requests fewer units be produced. Premio shall notundertake the first article production for any Product until Sourcefire has approved the prototypefor such Product. During the first article production
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process for any Product, Sourcefire shall have the right to be present at the ManufacturingFacility where the first article production takes place. Following completion of the first articleproduction of a Product, Sourcefire shall then determine, in its sole discretion, if Premio hassuccessfully achieved first article production for such Product based on the Specifications and allother testing requirements. If Sourcefire approves the first article production for a Product,then Premio shall be permitted to manufacture and ship such Product to Customers upon receipt of anOrder from Sourcefire. If Sourcefire does not approve the first article production for a Productdue to the failure to conform with the Specifications or testing requirements provided in the SOW,Sourcefire shall provide Premio with the reasons (in reasonable detail) as to why Premio did notsuccessfully achieve the first article production for such Product and also provide any necessaryand specific suggestions and guidelines to assist Premio in achieving approval for first articleproduction. Thereafter, Premio shall proceed again with the aforementioned first article productionand approval process set forth in this Section 2.3(b) until the first article production for suchProduct is approved by Sourcefire.     (c) Production at Manufacturing Facilities. Premio shall be required to follow theprototype and first article production approval process in Section 2.3(a) and 2.3(b) at eachManufacturing Facility for each Product.2.4. Manufacturing Requirements. Each Product manufactured by Premio must conform to theSpecifications as provided in the applicable SOW before the Product can be shipped by Premio to aCustomer. If any Product manufactured by Premio does not conform to the Specifications or pass theapplicable testing requirements as provided in the SOW, then Premio shall correct all deficienciesand/or non-conformities and replace or repair such defective Product, at no additional charge toSourcefire, before such Product is shipped to a Customer. Sourcefire shall have the right, at anytime in its sole discretion, to observe Premio’s performance of required testing, provided thatsuch observation does not interfere with Premio’s operations.2.5. Production Records. Premio shall maintain all quality records and test resultsrequired by an SOW for all manufactured Products and deliver them to Sourcefire upon request bySourcefire. Premio will use commercially reasonable efforts to maintain the accuracy of all suchrecords and test results.2.6 Rework. In the event any Rework (hereinafter defined) is required by Sourcefire,Sourcefire agrees and acknowledges that such Rework may result in an increased Product Price notcontemplated by the Parties in an SOW, or an excusable delay for Premio with respect to itsdelivery and lead times and materials liability. “Rework” shall mean any change or reworkrequested by Sourcefire that is not specified in an SOW (and amendments thereto), any softwarepatch or reloading of any software image, and any rework of the Product prior to delivery.**3. MATERIALS MANAGEMENT**3.1. Materials Fulfillment. Except for the Software Image for each Product and any OtherProducts, each of which may be provided by Sourcefire to Premio, Premio will procure and supply allcomponents listed in the Bill of Materials necessary to
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manufacture, process, pack and deliver all Products ordered by Sourcefire. Premio may not use anycomponent parts not listed in the Bill of Materials to manufacture the Products without the priorwritten consent of Sourcefire. Premio will use its commercial best efforts to manage its inventoryof such components and purchase such components, except that Premio shall manage such inventorypursuant to any Sourcefire forecast and SOW. Premio shall provide Sourcefire with an inventoryreport of all finished Products, Products-in-process and components listed in the Bill of Materialson a real time basis upon request. Premio also hereby grants to Sourcefire a non-exclusive, fullypaid-up right and license to access and use, on a real time basis, Premio’s on-line supply chainmanagement, enterprise resource planning (ERP) and such other software systems customarily providedto Premio’s customers used to track component and Product inventories and the ordering, productionand shipment of all Orders.3.2. Material Liability. Premio will be responsible for procurement and management of allcomponents and finished Products and Other Products inventory to meet Sourcefire’s requirements andOrders. Premio will use commercially reasonable efforts with the intent to fulfill Sourcefire’sforecasts and requested buffers pursuant to any forecasts provided by Sourcefire under thisAgreement or an SOW. Notwithstanding anything to the contrary in this Agreement, if QuarterlyForecast or Order changes by Sourcefire result in unordered but originally forecasted inventory offinished Products or component parts that Sourcefire does not order and purchase within theapplicable period of such Quarterly Forecast, Sourcefire may be required by Premio to repurchasethese inventories provided such inventory was maintained pursuant to such forecast provided bySourcefire.3.3. Approved Vendor List. Premio agrees to procure the component parts listed in the Billof Materials only from vendors listed on the AVL. Sourcefire may amend the AVL at any time uponprior written notice to Premio, except that in the event such amendment materially impacts andaffects, as determined by Premio, the terms and conditions of this Agreement and any SOW including,without limitation, the manufacturing costs, Bill of Materials, delivery and lead times, then theParties shall amend this Agreement and SOW as necessary. Premio will not deviate from the AVLwithout Sourcefire’s prior written approval.**4. LICENSES**4.1. License Grant. Sourcefire hereby grants Premio a worldwide, non-exclusive,non-transferable, non-sublicensable and royalty free license under all Intellectual Property rightsowned by Sourcefire with respect to the Products to use such Intellectual Property and ConfidentialInformation of Sourcefire solely to manufacture the Products at the Manufacturing Facilities and toperform the services required by this Agreement.4.2. Restrictions; Reservation of Rights. Each Party agrees to use the other Party’sIntellectual Property and Confidential Information only to manufacture Products or to perform itsobligations or exercise its rights under this Agreement. Premio shall not (a) license, distributeor otherwise make the Software Image available to any third party that has not been approved bySourcefire, or (b) reverse engineer, decompile, disassemble or otherwise attempt to determine thesource code of the Software
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Image. Any rights in Sourcefire’s Intellectual Property and Confidential Information not expresslygranted to Premio under this Agreement are reserved by Sourcefire; any rights in Premio’sIntellectual Property and Confidential Information not expressly granted to Sourcefire under thisAgreement are reserved by Premio.4.3. Information Exchange. Each Party shall provide the other Party with such ConfidentialInformation as it determines in its sole discretion is necessary to facilitate Premio’smanufacturing of the Products. At either Party’s request, each Party shall answer all reasonablequestions with respect to the Confidential Information disclosed by the other Party. Allinformation disclosed by Sourcefire with respect to the Specifications shall constitute theConfidential Information of Sourcefire.**5. FORECASTING AND ORDERING**5.1. Forecast. On or before the forty-fifth (45th) day prior to the beginningof each calendar quarter, Sourcefire will provide Premio with a non-binding quarterly forecastwhich shall include a forecast for the next calendar quarter and guidance with respect to thecalendar quarter following such next quarter (each, a “Quarterly Forecast”) to assistPremio in managing its inventory of components and production planning for the next two (2)calendar quarters. All Quarterly Forecasts shall be by region and Product, unless set forthotherwise in an SOW. Sourcefire may also submit periodic updates to a Quarterly Forecast whichupdates shall be deemed to amend, and be incorporated into, such Quarterly Forecast. Premio shallhave five (5) business days from receipt of a Quarterly Forecast (or any update thereto) to providenotice to Sourcefire that in Premio’s reasonable judgment that Premio will be unable to manufactureand deliver all of the Products required by such forecast. If Premio does not provide Sourcefirewith any such notice within the required 5-day period, then Premio shall be deemed to have acceptedsuch forecast. Sourcefire acknowledges that (a) certain products have long component lead times(10 – 13 weeks), and (b) the transit time to the APAC and/or EMEA regions may add up to five (5)weeks to a production schedule, thus Sourcefire will use commercially reasonable efforts to providePremio with a forecast that takes such lead times into account. Notwithstanding anything to thecontrary in this Agreement or any SOW, Sourcefire acknowledges and agrees that (a) Premio maymaintain appropriate inventories of finished goods, components or parts for the manufacture of theProducts pursuant to the Quarterly Forecasts provided by Sourcefire which includes any QuarterlyForecast and guidance that Sourcefire provides to Premio with respect to any quarter that followsthe quarter for which the then most current Quarterly Forecast has been provided; and (b)Sourcefire shall be liable to Premio for any such inventories maintained by Premio pursuant to theQuarterly Forecasts and related guidance provided by Sourcefire even if such forecasts and guidanceare later amended or updated.5.2. Orders. Sourcefire shall have the right under this Agreement to purchase Products andrequest delivery of the purchased Products and the Other Products to Customers by issuing Premio anOrder. Each Order will include the following information: (a) the Order number; (b) the quantityof each Product ordered and Other Products to be delivered; (c) Customer name and deliverylocation; (d) requested shipment and delivery dates; and (e) if applicable, Sourcefire’s commercialinvoice for international shipments. Sourcefire may place Orders by mail, e-mail, facsimile orpursuant to an
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on-line supply chain ordering system that can readily be accessed by Sourcefire and Premio.5.3. Manufacturing Capacity. This section 5.3 shall only apply to Products manufactured byPremio and shall not apply to any Other Products. Based on the Quarterly Forecasts provided bySourcefire under Section 5.1 of this Agreement, Premio will ensure that its manufacturing capacityis able to reasonably support Sourcefire’s demand for all Orders, except for any change orders(other than a Final Change Order) or any Rework. In the event Sourcefire’s Orders for Productsexceeds a Quarterly Forecast that Premio relied upon to forecast Premio’s manufacturing capacity,Premio shall review its manufacturing capacity and inform Sourcefire within five (5) business daysor as soon as reasonably practical as to whether Premio is able to manufacture and sell toSourcefire each Product identified in such Order. Premio will also reasonably attempt to ensurethat materials are available to satisfy and support the planned delivery dates and other serviceand support requirements of this Agreement pursuant to the Quarterly Forecasts. Unless otherwiseagreed to in an Order or an SOW, Premio shall use the Manufacturing Facility that (a) is the mostcost effective with respect to production, shipping and delivery costs, and (b) allows for timelydelivery of an Order to a Customer. Notwithstanding the foregoing, Sourcefire shall have the rightto determine which Manufacturing Facility shall be used to manufacture any Products for aparticular Order, subject to Premio’s manufacturing capacity.5.4. Suspension of an Order and Cancellation. If Premio fails to deliver any Product orOther Product within five (5) business days after the agreed delivery date, and the delay is notcaused by Sourcefire, or excused by Sourcefire due to a force majeure condition or a common carrierdelay, then Sourcefire may immediately suspend the applicable Order and cancel, in whole or inpart, the delayed portion of such Order.5.5. Best Effort. Notwithstanding the foregoing, Premio shall use its commercial bestefforts to deliver delayed products expeditiously.**6. PACKING, SHIPPING AND DELIVERY**6.1. Packing. Premio shall pack, mark and prepare each Product and Other Product forshipment in a manner that is commercially reasonable to attempt to prevent damage under normalhandling during loading and unloading, shipping and storage in accordance with anyshipping/delivery instructions provided by Sourcefire under an SOW. Sourcefire shall beresponsible for (a) providing Premio with the Other Products that Sourcefire desires to be shippedto Customers, and (b) the costs of any additional packaging materials, designs, or requirements ofSourcefire which are beyond those ordinarily provided by Premio or beyond those agreed upon in anSOW.6.2. Shipping Documentation. The Order number and quantity of Products and Other Productscontained in each package shall be marked on all packing cartons, shipping papers and subordinatedocuments. A packing list must be included for every Sourcefire shipment and it will identify thetotal number of Products and Other Products included in the shipment and the listing of the uniqueproduct serial numbers applicable to the shipment.
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6.3. Do Not Ship List. Premio shall not ship any Products or Other Products in violationof any export or import Laws. In furtherance of this objective, Premio shall (a) obtain, and atall times use, a Do Not Ship List from a reputable third party provider, (b) compare thedestination and recipient specified in each Order to such Do Not Ship List, and (c) not ship anyProducts or Other Products to any individuals, entities or jurisdictions that are on the Do NotShip List.6.4. Shipping. Premio shall notify Sourcefire at the time of each shipment as to thequantity of Products and Other Products shipped and the specific shipping information. Shippingquantities may not vary from those established by the Order unless otherwise mutually agreed uponin writing by the Parties. In the event any shipment is delayed and may not be timely, Sourcefiremay direct Premio to ship such Order by premium transportation designated by Sourcefire and Premioshall bear the expense of any difference in cost due to such premium transportation, provided thatsuch delay: (i) is not in any way caused by Sourcefire and delay by Sourcefire may include, withoutlimitation, any change orders, Rework or any change in forecast, and (ii) is due to Premio’s fault,except that any delay caused by a third party carrier or supplier shall not be Premio’s fault andPremio shall not bear the expense of any difference in cost due to such premium transportation.Premio shall ship all Products and Other Products to the delivery address(es) set forth in theapplicable Order. Sourcefire may, from time to time, instruct Premio to deliver all or a portionof an Order to a different location, or to store all or portions of an Order for subsequentshipment at Premio’s facility without charge for up to ninety (90) days following packaging andthereafter subject to charge. Until a Product or Other Product, as applicable, is shipped, Premioshall store such Product and Other Product separately from any other material stocks and inaccordance with Sourcefire’s storage requirements, provided Sourcefire provide such storagerequirements to Premio in this Agreement or any SOW. Premio assumes all responsibility andliability for any loss or damage to such Product and Other Product while stored at Premio. Unlessspecifically set forth in an SOW, all freight and transportation costs for the Products and OtherProducts shall be the responsibility of Sourcefire.6.5. Delivery. Premio will use reasonable best efforts to meet the requested shipment anddelivery dates set forth in each Order, except that, notwithstanding anything to the contrary inthis Agreement or any SOW, the Parties agree to reasonably delay as an excusable delay any shipmentand delivery dates for any (a) Orders that exceed the requirements of a Quarterly Forecast that hasbeen accepted by Premio (as provided under Section 5.1), (b) changes to Specifications (as providedunder section 2.2), any Rework (as provided under section 2.6) or (c) any delay caused by a thirdparty carrier or supplier. If any shipment or delivery dates are at risk, Premio will notifySourcefire and work out the best possible delivery schedules with Sourcefire. Premio will deliverall Orders in accordance with the packaging, labeling and shipping requirements set forth in theSpecifications, SOW and other reasonable instructions provided by Sourcefire from time to time.Premio shall track all Orders through delivery and shall not ship or deliver partial Orders withoutthe prior approval of Sourcefire.6.6. Requests for Delayed Delivery. Sourcefire shall notify Premio as soon as possible ifan Order needs to be delayed or cancelled. Upon receiving such notice for delay of an Order,Premio will endeavor to postpone component deliveries and finished goods
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production as requested by Sourcefire to the extent that it is commercially possible andpracticable, provided that Sourcefire shall be liable to Premio for any costs and expensesassociated with the compliance of such request. Upon receiving such notice for cancellation of anOrder, Sourcefire shall be liable to Premio for the costs directly related to such cancellation bySourcefire including, without limitation, any finished Products, any work-in-process materialsassociated with the Products, any inventory of components for the Products, any restocking feescharged to Premio by any third party supplier, and any transportation costs.6.7. Title and Risk of Loss. Premio shall deliver all ordered Products and Other Productsto the designated carrier F.O.B. Premio’s shipping dock. The carrier(s) used by Premio forshipment shall be approved by Sourcefire, such approval not to be unreasonably withheld or delayed.Title to and risk of loss of each Product shall pass from Premio to Sourcefire only upon Premio’sdelivery of such Product to the designated carrier at Premio’s shipping dock for shipment. Premiowill at no time take title to any Other Product. Premio reserves a purchase money securityinterest in all Products or Other Products that have been ordered and delivered to Customers untilSourcefire pays all prices and charges due to Premio under this Agreement and any SOW for suchProducts and Other Products.6.8. Inspection. During normal business hours, upon reasonable notice to Premio, Sourcefireshall have the right, but not the obligation, to (a) inspect the work conducted and servicesprovided by Premio under this Agreement at Sourcefire’s own expense; (b) inspect and test, atSourcefire’s own expense, the Manufacturing Facility and any vehicles, containers or otherequipment used in such work or services, including, without limitation, any areas where components,Products or Other Products are stored, handled, packaged, or manufactured; and (c) inspect andobtain copies of licenses, authorizations, approvals or written communications from anygovernmental entity or agency applicable or related to such work or services. Sourcefire shallexecute any necessary confidentiality agreements as may be required by Premio in connection withany such inspection(s).**7. PRICES AND PAYMENT TERMS**7.1. Product Prices. The initial Product Price for each Product shall be mutually agreedupon by Premio and Sourcefire and set forth in the applicable SOW. Subject to the provisions ofthis Agreement and those in the applicable SOW, the Product Price for each Product may not beincreased without Sourcefire’s prior written consent. The Product Price for a particular Productshall be the same regardless of the Manufacturing Facility used to manufacture such Product, exceptas set forth in any applicable SOW. The Parties agree to review the Product Prices on an annualbasis or at any time as required under this Agreement or any SOW. All pricing for Products shallexclude any freight, shipping, taxes, tariffs or duties, except as specifically set forth in anSOW.7.2. Payment Terms. Unless otherwise agreed upon in an SOW, Premio shall invoiceSourcefire for each Order at Sourcefire’s principal address set forth above after shipment of suchOrder by Premio. Sourcefire shall pay Premio net forty-five (45) days from Premio’s date ofinvoice; all payments will be made only in U.S. Dollars (US$). Sourcefire will advise Premio ofany billing discrepancies or disputes about an invoice
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within ten (10) days of receiving the invoice. Overdue payments shall be subject to a late paymentcharge of one and one-half percent (1.5%) per month of the overdue amount (but not to exceed themaximum lawful rate). Premio shall also provide Sourcefire with a monthly statement that setsforth all outstanding unpaid invoices.7.3. Taxes. Except for taxes on Premio’s income, Sourcefire shall pay and be liable for allapplicable taxes, duties, freight, tariffs, and related charges, including interest and penalties,that any governmental or taxing authority imposes relating to the sale and/or delivery of Products,services and Other Products by Premio to Sourcefire. All applicable taxes, including, withoutlimitation, sales or use taxes, transaction privilege taxes, gross receipts taxes and other chargessuch as duties, customs, tariffs, imposts and government-imposed surcharges shall be statedseparately on Premio’s invoice. Premio shall remit all such charges to the appropriate taxauthority unless Sourcefire provides sufficient proof of tax exemption and informs Premio that itis not required to remit such charges. When property is delivered and/or services are provided orthe benefit of services occurs within jurisdictions in which Premio’s collection and remittance oftaxes is required by law, Premio shall have sole responsibility for payment of such taxes to theappropriate tax authorities. In the event Premio does not collect tax from Sourcefire when it islegally required to do so, and Premio is subsequently audited by any tax authority, the liabilityof Sourcefire shall be limited to the tax assessment, with no obligation of reimbursement bySourcefire to Premio for penalty or interest charges. Each Party is responsible for its ownrespective income taxes or taxes based upon gross revenues, including, without limitation, businessand occupation taxes.**8. CONFIDENTIALITY**8.1. Obligations. Recipient shall not use the Confidential Information of Discloser exceptfor the purpose of performing its obligations and exercising its rights under this Agreement.Recipient shall maintain the Confidential Information of Discloser with at least the same degree ofcare it uses to protect its own confidential information of a similar nature or sensitivity, but noless than reasonable care under the circumstances. Unless Discloser grants specific, written,advance permission to do so, Recipient shall not disclose any Confidential Information to any thirdparty except as provided for in Section 8.2. Recipient shall limit access to the ConfidentialInformation of Discloser to those employees of Recipient who have a need to know such informationin order to perform its obligations and exercise its rights under this Agreement and who are boundby written confidentiality and non-use obligations to Recipient at least equivalent to Recipient’sobligations to Discloser under this Agreement. Should Recipient determine that it needs todisclose Confidential Information of Discloser to any non-employee (including consultants andcontractors) in order to perform its obligations or exercise its rights under this Agreement,Recipient shall not do so without the prior written permission of Discloser. Upon receiving suchpermission, Recipient may proceed, but only after entering into a written agreement that binds suchnon-employee to confidentiality and non-use obligations to Recipient at least equivalent toRecipient’s obligations to Discloser under this Agreement. Recipient shall be responsible toDiscloser for the acts and omissions of any such non-employee with respect to such confidentialityand non-use obligations.8.2. Exceptions. Recipient may disclose Confidential Information of Discloser to the
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extent required by Law or order of a court of competent jurisdiction, provided that, in such event,Recipient shall provide Discloser prompt, advance notice of such requirement to allow intervention(and shall cooperate with Discloser) to contest or minimize the scope of the disclosure (includingthrough application for a protective order). Notwithstanding the foregoing, Premio acknowledgesand agrees that Sourcefire may be required to file this Agreement (including any exhibits oramendments hereto) with the U.S. Securities Exchange Commission (the “SEC”) and relatedsecurities exchanges and government agencies pursuant to its reporting obligations under the Law asa public company, and that all such filings will result in this Agreement becoming a publiclyavailable document. Sourcefire shall make any such filings as is necessary under Law without theprior consent of, or consultation with, Premio.8.3. Return of Confidential Information. Upon any expiration or termination of thisAgreement for any reason or upon the request of Discloser, Recipient shall return or destroy, atDiscloser’s option, all Confidential Information of Discloser and any copies thereof. In addition,Recipient shall promptly destroy any electronic or other non-returnable embodiments of theConfidential Information.8.4. Injunctive Relief. The Parties agree that any breach of Section 8 shall causeirreparable harm and significant injury to the non-breaching Party which may be difficult toascertain. Accordingly, the Parties agree that each Party shall have the right, in addition to anyother remedies available to it, to obtain an immediate injunction, without necessity of posting abond, enjoining any breach by the other Party of Section 8. Notwithstanding anything in thisAgreement to the contrary, Sourcefire shall be entitled under this Agreement to all of the rightsand remedies available to a contracting party under the Uniform Commercial Code.**9. REPRESENTATIONS AND WARRANTIES**9.1. Products and Services. Premio represents, warrants and covenants that: (a) it is ingood standing under the laws of the State of Illinois; (b) it has the corporate power and authorityto enter into this Agreement, to perform its obligations hereunder and to consummate thetransactions contemplated hereby; (c) the execution of this Agreement and the performance by Premiohereunder will not violate or conflict with any Law or result in a material breach of any provisionor the loss of any material benefit under any agreement to which Premio is a party; (d) theProducts manufactured hereunder shall conform to the Specifications and any applicable Order; (e)any services performed hereunder shall be performed in a professional and competent manner and inaccordance with the requirements set forth in the applicable SOW; (f) the Products will be freefrom defects in workmanship and material; and (g) the Products (and components therein) purchasedhereunder by Sourcefire shall be new and Premio has good and marketable title to such Products (andthe components therein) and there are no liens, claims or encumbrances of any kind whatsoeveragainst the same. The warranties herein contained are not to be deemed exclusive, and Premio shallbe entitled to all other warranties and remedies available to it at law or in equity.9.2. Warranty for DOA (Dead On Arrival). In addition to the representations, warrantiesand covenants set forth in Section 9.1 and subject to any applicable SOW, Premio will
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also provide DOA (defined below) warranty repair or replacement, at Sourcefire’s sole discretion,related to materials, workmanship and components of all Products at no cost to Sourcefire andCustomers, provided that: (a) Sourcefire submits a DOA claim to Premio within forty-five (45) daysfollowing the date a Customer initiates use of such Product, (b) the DOA Product is returned toPremio, and (c) Premio independently verifies that the Product is defective on arrival.Notwithstanding the foregoing, Premio shall not be liable for any software failures related to theProduct if the Product conforms to the Specifications. For purposes of this Section 9.2, the term“DOA” means a Product that is found to be defective within forty-five (45) days following the datea Customer initiates use of such Product, except that DOA shall not include damage to the Productduring shipment (other than damage caused by Premio). Notwithstanding the foregoing, Premio shallhave no obligation under this Section 9.2 if a Product is found to be defective for the first timeone hundred and eighty (180) days (or later) from the date of Premio’s invoice to Sourcefire ofsuch Product. For purposes of this section, Sourcefire shall provide Premio on a regular basisinitiation or activation reports containing the following minimum information: serial number ofeach DOA Product and the date each DOA Product was activated or initiated by Sourcefire’s Customer.9.3. Product Warranty, Remedies and Limitations. Premio also represents, warrants andcovenants to Sourcefire that the Products will be free from defects in workmanship and materials,under normal use and service, for a period of one (1) year from Premio’s invoice date, subject toany applicable SOW. The foregoing warranty shall not apply if the identified defects were causedby accident or damage (other than by Premio), improper installation, alteration or misuse of aProduct by Customer, improper servicing, power surge, fire or other acts of nature or God. Subjectto the SOW, Premio’s sole obligation under this limited warranty shall be, at Sourcefire’s option,to repair the defective Product at Premio’s Manufacturing Facility, deliver to Sourcefire or aCustomer a replacement Product, or if neither of the two foregoing options is reasonably possible,a refund will be provided to Sourcefire for the Product Price paid for the defective Product. Forany Product replaced or repaired pursuant to the limited warranty in this section, the abovewarranty will apply to such Product for 90 days from the shipment date or the remainder of theinitial warranty based upon the original Premio invoice date, whichever is longer. Upon request bySourcefire, Premio shall also maintain a reasonable number of Products and Other Products in aseparate pool to be used solely to replace Products subject to a warranty claim.9.4. Compliance with Laws. Premio represents, warrants and covenants that it shall: (a)comply with all Laws applicable to its performance under this Agreement, including, withoutlimitation, all import and export Laws and Laws that prohibit the use of child labor; (b) obtainall necessary domestic and foreign licenses, authorizations, certifications, permits and approvalsrequired to perform under this Agreement; and (c) Premio shall at all times perform any workrequired under this Agreement safely and in a manner which shall present no threat of bodily injuryor property damage, and shall enforce compliance with the highest standards of safety and accidentprevention found in applicable Laws.9.5. Environmental Compliance. Premio further represents, warrants and covenants that:
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     (a) Compliance with Environmental Laws. Premio shall comply with all applicableEnvironmental Laws (defined below) while performing services and manufacturing Products hereunderand obtain and maintain all licenses, authorizations, certifications and approvals required underany applicable Environmental Law in connection with this Agreement. The term “EnvironmentalLaws” means shall mean any and all Laws applicable to Premio’s performance under this Agreementrelating to the indoor or outdoor environment, or to the health or safety of natural personsaffected by the environment, or to the release or threatened release of Hazardous Materials(defined below) into the indoor or outdoor environment, including, without limitation, ambient air,soil, surface water, groundwater, sea water, wetlands, land or subsurface strata, or otherwiserelating to the use of Hazardous Materials, whether now or hereafter in effect. The term"Hazardous Materials” means any of the following: any chemicals, materials, substances orwastes that are now or hereafter become (a) defined or listed as, or included in the definition of,“hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,”“restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants,” “pollutants”or terms of similar import under any Environmental Law, and (b) prohibited, limited or regulatedunder any Environmental Law.     (b) Investigation of Hazardous Materials. Premio shall not knowingly permit therelease of any Hazardous Material into the environment and, in the event of any such release, shallpromptly perform any investigation, study, sampling, testing, cleanup, removal and remedial orother action necessary to remove and clean up any such Hazardous Materials in accordance with therequirements of all applicable Environmental Laws.     (c) Reporting. If known and confirmed, Premio shall advise Sourcefire of any hazardor toxic substance which is present in or may be encountered by Sourcefire and Customers and theiragents and employees in using or possessing the articles or materials furnished hereunder, andPremio shall use its best efforts to minimize the hazard or toxicity thereof. Subject toconfidentiality or similar non-disclosure requirements, Premio shall promptly provide toSourcefire, upon request, copies of all environmental reports or surveys received or developed byPremio pertaining to Premio’s compliance with applicable Environmental Laws as such EnvironmentalLaws apply to Premio’s performance hereunder.     (d) Environmental Notices. Premio shall deliver the following notices to Sourcefire:(i) promptly upon obtaining knowledge of (x) any fact, circumstance, condition or occurrence thatcould form the basis of a claim relating to the violation of any Environmental Law resulting fromPremio’s performance under this Agreement, or (y) any pending or threatened claim brought by anyperson or entity relating to the violation of any Environmental Law by Premio, a notice thereofdescribing the same in reasonable detail and, together with such notice or as soon thereafter aspossible, a description of the action that such person or entity has taken or proposes to take withrespect thereto and, thereafter, from time to time such detailed reports with respect thereto asSourcefire may reasonably request; and (ii) promptly upon their becoming available, copies of allwritten communications with any government authority relating to any Environmental Law orenvironmental claim arising out of this Agreement.
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9.6 Disclaimer. THE FOREGOING WARRANTIES SET FORTH IN SECTION 9 REPLACE AND ARE IN LIEU OFALL OTHER WARRANTIES OR CONDITIONS BY THE PARTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDINGBUT NOT LIMITED TO ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE.**10. INDEMNIFICATION AND LIMITATION OF LIABILITY**10.1. Indemnification.     (a) Premio agrees to indemnify, defend and hold harmless Sourcefire, its customers, employees,successors and assigns (all referred to in this Section 10 as “Sourcefire”) from and against anylosses, liabilities, costs, damages, claims, fines, penalties and expenses (including, withoutlimitation, costs of defense or settlement and reasonable attorneys’, consultants’ and experts’fees) that arise out of or result from: (a) injuries or death to persons or damage to property,including theft, in any way arising out of or caused or alleged to have been caused exclusively bythe work or services performed by Premio for the Products; (b) assertions under workers’compensation or similar acts made by persons employed or engaged by Premio; (c) any breach of anyrepresentation or warranty by Premio or failure of Premio to perform its obligations under thisAgreement or to comply with any covenant in this Agreement; (d) claims by governmental authoritiesalleging violation of any Law, including, without limitation, any Environmental Law or import orexport Law, in any way arising out of or caused or alleged to have been caused exclusively byPremio’s work or services under this Agreement for the Products provided by Premio; or (e) anyactual or alleged environmental claim, or any contamination, damage or adverse effect on theenvironment or natural resources (including, without limitation, the cost of any investigation orremediation related thereto) in any way arising out of or caused or alleged to have been causedexclusively by Premio’s work or services under this Agreement for any Product provided by Premio.     (b) Sourcefire agrees to indemnify, defend and hold harmless Premio and its employees,successors and assigns (all referred to in this Section 10 as “Premio”) from and against anylosses, liabilities, costs, damages, claims, fines, penalties and expenses (including, withoutlimitation, costs of defense or settlement and reasonable attorneys’, consultants’ and experts’fees) that arise out of or result from: (a) injuries or death to persons or physical damage toproperty, excluding theft, in any way arising out of or caused or alleged to have been caused bythe Product and Other Products, other than claims directly attributable to Premio’s work orservices under this Agreement relating to the Products; (b) assertions under workers’ compensationor similar acts made by persons employed or engaged by Sourcefire; (c) any breach of anyrepresentation or warranty by Sourcefire or failure of Sourcefire to perform its obligations underthis Agreement or to comply with any covenant in this Agreement; (d) claims by governmentalauthorities alleging violation of any Law, including, without limitation, any Environmental Law orimport or export Law, in any way arising out of or caused or alleged to have been caused by theProduct and Other Products, other than claims directly attributable to Premio’s work or servicesunder this Agreement relating to the Products; or (e) any actual or alleged environmental claim, orany contamination, damage or adverse effect on the environment or natural resources
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(including, without limitation, the cost of any investigation or remediation related thereto)in any way arising out of or caused or alleged to have been caused by the Product and OtherProducts, other than claims directly attributable to Premio’s work or services under this Agreementfor the Products.     (c) The obligation of the Party (the “Indemnifying Party”) to indemnify the other Party (the“Indemnified Party”) under this Section 10.1 is expressly contingent upon: (i) the IndemnifiedParty giving prompt written notice to the Indemnifying Party of any such claim for whichindemnification is sought; (ii) the Indemnified Party allowing the Indemnifying Party exclusivecontrol of the defense and any related settlement of any such claim; and (iii) the IndemnifiedParty furnishing the Indemnifying Party with reasonable assistance, at the Indemnifying Party’scost and expense, in connection with the claim without prejudicing the Indemnifying Party in anymanner. Subject to the foregoing conditions, nothing in this Agreement shall prohibit theIndemnified Party from hiring separate counsel, at the Indemnified Party’s own expense.10.2. Limitation of Liability. EXCEPT FOR ANY BREACH OF SECTION 4 (“LICENSES”) OR SECTION 8(“CONFIDENTIALITY”) AND EXCEPT FOR ANY OBLIGATIONS UNDER SECTION 10.1 (“INDEMNIFICATION”), IN NOEVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, PUNITIVE ORCONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS RESULTING FROMINTERRUPTION OF BUSINESS OR LOSS OF USE OR DATA, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCHLOSS.**11. INSURANCE**11.1. Coverage Amounts. Premio covenants that it will maintain in effect at all times thefollowing insurance:     (a) Worker’s compensation insurance covering Premio, subcontractors and other associates oremployees, including occupational illness or disease coverage, or other similar social insurance inaccordance with the laws of the country, state, or territory exercising jurisdiction over theemployee and employer’s liability insurance with a minimum limit of $1,000,000 per occurrence.     (b) Comprehensive general liability insurance, including advertising injury and personalinjury coverage (“AI/PI”) contractual liability coverage with a minimum combined single limit of$1,000,000 per occurrence/$2,000,000 in the aggregate. This policy shall be endorsed to nameSourcefire, and its directors, officers, employees and successors and assigns, as additionalinsured parties.     (c) Automotive liability insurance covering use of all owned, non-owned, and hired automobileswith a minimum combined single limit of $1,000,000 per occurrence for bodily injury and propertydamage liability.     (d) Professional liability and errors and omissions liability insurance with minimum limits of$1,000,000 per claim. Coverage shall include subcontractors and temporary employees of Premio asadditional insured parties.
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The minimum limits of coverage described in this Section 11 are not intended, and shall not beconstrued, to limit any liability or indemnity of each party under this Agreement.11.2. Endorsement; Subrogation. Each of the above-referenced insurance coverage policiesshall: (a) be endorsed to name Sourcefire as insured parties and/or loss payees; (b) act as primaryand non-contributory with respect to any other insurance, captives or self-insurance maintained bySourcefire, its directors, officers, employees and successors and assigns of each; (c) includewaivers of subrogation; and (d) remain in force at all times during the term of this Agreement andfor a period of three (3) years thereafter.11.3. Certificate of Insurance. Premio shall provide Sourcefire with a certificate ofinsurance evidencing coverage upon the execution hereof. At least thirty (30) days prior to theexpiration of any insurance policy, Premio shall provide Sourcefire with appropriate proof ofissuance of a renewal policy continuing in force and effect the insurance coverage of the insuranceso expiring.11.4. Changes in Insurance. Premio shall provide Sourcefire with thirty (30) days writtennotice of any changes in any insurance policy or cancellation thereof; provided, however, thatPremio shall not make any material revisions to such policy that may adversely affect Sourcefire’srights without Sourcefire’s prior written consent (such consent not to be unreasonably withheld).**12. TERM AND TERMINATION**12.1. Term of Agreement. The term of this Agreement shall commence as of the EffectiveDate and shall continue in full force and effect for a period of three (3) years, unless terminatedsooner in accordance with applicable conditions stated in this Agreement.12.2. Grounds for Immediate Termination. Either Party may terminate this Agreement and anyor all SOWs immediately without liability for said termination, upon written notice to the otherParty, if any one or more of the following events occur: (a) a voluntary or involuntary petitionfor bankruptcy is filed for, or with respect to the other Party; (b) the other Party is adjudgedbankrupt; (c) a court assumes jurisdiction of the other Party’s assets under a federalreorganization act; (d) a trustee or receiver is appointed by a court to control the other Party’sassets; (e) the other Party becomes insolvent or suspends business for any reason; and (f) theother Party makes an assignment of its assets for the benefit of its creditors, except as requiredin the ordinary course of business.12.3. Grounds for Termination. In addition to the termination rights set forth in Section12.2, either Party may terminate this Agreement in the event of a breach of any material term orcondition of this Agreement or any SOW by the other Party provided that the breaching Party isprovided with written notice of such breach by the non-breaching Party and the breaching Party hasthirty (30) days to cure such breach.12.4. Effect of Termination. Sections 3.2 (“Materials Liability”), 5.1 (Forecast), 8
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(“Confidentiality”), 10 (“Indemnification; Limitation of Liability”) and 13 (“Miscellaneous”) shallsurvive any expiration or termination of this Agreement.**13. MISCELLANEOUS**13.1. Notices. Except as otherwise expressly provided herein, any notice or demand givenunder the terms of this Agreement or pursuant to statute shall be in writing and shall be deliveredin person or sent by facsimile or email transmission (with confirmation of receipt), certified orregistered mail, return receipt requested, or by express delivery service or other overnightdelivery service, proper postage or other charges paid, and addressed to the respective Parties asfollows:To: Sourcefire