OEM Purchase and License Agreement

Exhibit 10.1 OEM PURCHASE AND LICENSE AGREEMENT between EMC CORPORATION
176 South Street
Hopkinton, MA 01748 AND BROCADE COMMUNICATIONS SYSTEMS, INC
1745 Technology Drive
San Jose, CA 95110 AND BROCADE COMMUNICATIONS SWITZERLAND, SarL
29 route de l’Aeroport
Case Postale 105
1215 Geneva 15, Switzerland AND BROCADE COMMUNICATIONS SERVICES SWITZERLAND, SarL
29 route de l’Aeroport
Case Postale 105
1215 Geneva 15, Switzerland OEM Agreement Number OEM 051208

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OEM Purchase and License Agreement This OEM Purchase and License Agreement ("Agreement") is entered into by and between BROCADE Communications Systems, Inc., a Delaware corporation with an office located at 1745 Technology Drive, San Jose, California 95110, and BROCADE Communications Switzerland SarL., a Geneva corporation with principal offices at 29 Route de l’Aeroport, Case Postale 105, CH-1215, Geneva 15, Switzerland, and BROCADE Communications Services Switzerland, SarL,, a Geneva corporation with principal offices at 29 Route de l’Aeroport, Case Postale 105, CH-1215, Geneva 15, Switzerland (collectively, " BROCADE "), and EMC Corporation, 176 South Street, Hopkinton, MA 01748 together with its designated Subsidiaries ("EMC"), and commences on the date accepted and executed by BROCADE ("Effective Date"). RECITALS      A. WHEREAS, following the merger and acquisition of McData Corporation ("McData"), the parties desire to, (i) terminate the existing OEM agreement between McData and EMC, (ii) terminate and restate the Purchase Agreement between BROCADE and EMC, and (iii), provide a frame work for adding future products to this OEM Agreement between BROCADE and EMC.      B. WHEREAS, in consideration of the mutual premises contained herein, BROCADE and EMC agree as follows: 1. DEFINITIONS "EMC" means the entity executing this Agreement, and all Subsidiaries or Affiliates thereof which (i) order and/or receive Products and/or Services, and/or (ii) license Software pursuant to the provisions of this Agreement. "Affiliates" means, with respect to EMC, any corporation or other organization, whether incorporated or unincorporated, which is an affiliate of EMC as "affiliate" is defined in Rule 12.2 of the Exchange Act. "Subsidiary" means with respect to EMC, any corporation, or other organization, whether incorporated or unincorporated, of which (a) at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by EMC or by any one of more of its Subsidiaries or by EMC and one or more of its Subsidiaries or (b) EMC or any other Subsidiary of EMC is a general partner (excluding any such partnership where EMC or any Subsidiary of EMC does not have the majority voting interest in such partnership). "Customer" means any entity to which EMC sells, rents, leases, licenses, or distributes BROCADE Products, including EMC’s Resellers and End User Customers. "Reseller" means any business entity which EMC utilizes to sell, market and service Products and sublicense Software for eventual use by End User Customers in accordance with the terms of this Agreement and any License(s) (as defined in Section 4 of this Agreement) relating thereto. EMC/Brocade Confidential
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"End User Customer" means any entity which purchases BROCADE-manufactured Products from EMC or Reseller and/or licenses Software associated therewith for its use in accordance with BROCADE’s then-current published specifications, configurations, and compatibility guidelines for data communications networking. "Object Code Software" means the machine-readable object code software e.g., the system diskette, any supporting software diskette(s) and/or the firmware embedded in all ROM, PROM or equivalent components of Product, including (i) the systems manual(s) supplied with each Product which is sublicensed pursuant to the terms of this Agreement and supplied to EMC by BROCADE, (ii) the machine-executable instructions and all associated descriptive material and documentation for each processor within each Product supplied by BROCADE pursuant to this Agreement, and (iii) subsequent updates and/or enhancements provided by BROCADE pursuant to this Agreement. Such Software may be provided to EMC on magnetic media or in written or graphic form which performs, describes, or illustrates the performance of all on-line functions, off-line utilities, and diagnostics pertinent to the Product. "Products" means certain BROCADE data communication equipment, hardware, related features, conversions, options, other accessories, Spares (as defined below) and Software (as defined below) which EMC is authorized to purchase and distribute, either as referenced in Exhibit A of this Agreement on the Effective Date of this Agreement, or as referenced in modifications and additions to Exhibit A which EMC and BROCADE may agree upon from time to time. Any reference in this Agreement to the purchase, distribution or sale (or any like term) of the Products herein shall be deemed to infer the license of the Software. As specified in Section 4.2.3, title to the Software shall always remain in BROCADE or its suppliers. The specification is referenced by a part number in Exhibit A. "Professional Services" means the BROCADE professional services offerings that EMC may sell to End User Customers and/or subcontract BROCADE to perform such services, as further set forth and described in Exhibit J. "Services" means the technical support, repairs, and training provided by BROCADE to EMC under this Agreement. "Software" means the collective reference to Object Code Software, device drivers and firmware included in the Product and any other software which may be listed herein. "Spares" means all parts, components or Field Replaceable Units (FRUs) of Products used for maintaining installed Products which are generally made available by BROCADE for separate sale. "Days" means calendar days unless otherwise noted. "Sales Order Release" means sales orders released by EMC to BROCADE in accordance with this Agreement. "BROCADE Consignment Kanban" means BROCADE owned products that are provided to EMC for storage in one of the BROCADE Consignment KanBan sites for the purpose of on-demand fulfillment of EMC’s requirements for Products. EMC/Brocade Confidential
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"Product Specification" means the current or most recent EMC Purchase Specification on file in EMC’s documentation control system and has been submitted to and accepted by BROCADE. 2. TERM AND TERMINATION 2.1 Subject to the provisions of sub-Sections 2.2, 2.3, 2.4 and 2.5 below, the initial term of this agreement shall be for a period of three (3) years from the Effective Date and will automatically extend for successive periods of one (1) year each unless either Party provides one hundred and eighty (180) days written notice to the other party prior to such renewal date. 2.2 EMC may terminate this Agreement at any time, without cause, by giving BROCADE at least sixty (60) days prior written notice. Termination of this Agreement will not relieve the parties of any obligations incurred prior to the date of termination. 2.3 In addition to the termination rights specified in sub-Section 2.2, above, either party may immediately terminate this Agreement upon written notice if the other party: 2.3.1 becomes insolvent or bankrupt, files or has filed against it a petition in bankruptcy, or undergoes a reorganization pursuant to a petition in bankruptcy filed with respect to it; or 2.3.2 is dissolved or liquidated, or has a petition for dissolution or liquidation filed with respect to it; or 2.3.3 is subject to property attachment, court injunction, or court order which substantially and negatively affects its operations; or 2.3.4 makes an assignment for the benefit of creditors; or 2.3.5 ceases to function as a going concern or to conduct its operations in the normal course of business. 2.4 Either party may immediately terminate this Agreement upon written notice if the other party fails to perform any of the material obligations imposed upon it under the terms of this Agreement so as to be in default hereunder and fails to cure such default within thirty (30) days after receiving written notice thereof. 2.5 During the notice period under 2.1 or 2.2, EMC may issue additional purchase orders with deliveries to be scheduled not later than one hundred and twenty (120) days after the specified termination date. 3. SCOPE AND TERRITORY OF AGREEMENT 3.1 BROCADE agrees to sell Products and product support to EMC in accordance with the terms and conditions of this Agreement. This Agreement is non-exclusive and the parties may enter into similar agreements with other parties. EMC shall not be obligated to purchase any Products or product support from BROCADE hereunder. EMC/Brocade Confidential
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3.2 BROCADE appoints EMC to market and distribute the Products and sublicense, market, distribute and demonstrate the Software directly or indirectly through Resellers worldwide. EMC or Resellers may only distribute the Software to End User Customers pursuant to an End User Software License Agreement ("EULA") which such EULA (a) contains terms no less protective of BROCADE’s Intellectual Property Rights in the Software than of EMC’s protection provided in other EMC software offerings. 3.3 Affiliated Companies. Any of EMC’s divisions or plants may purchase Products, materials, replacements and repair and refurbishment services (collectively "Products and Services") from BROCADE set forth in this Agreement. All other companies controlled by, controlling or under common control with EMC ("Affiliated Companies"), or EMC designated third parties, shall not purchase Products and Services from BROCADE under this Agreement without the prior written approval of EMC as evidenced by a signed amendment to such Exhibit L. EMC agrees that approved EMC Affiliated Companies and EMC designated third parties shall be bound by the terms and conditions of this Agreement and EMC will ensure compliance to the terms of this Agreement by such EMC Affiliated Companies and EMC designated third parties. BROCADE agrees to extend credit and payment terms as defined in Paragraph 5 of the Agreement to such Affiliated Companies and EMC designated third parties if such Affiliated Companies and EMC designated third parties meet BROCADE’s credit requirements. EMC will guarantee payment for such Products and Services that EMC approved Affiliated Companies and EMC designated third parties purchase from BROCADE if such Affiliated Companies and EMC designated third parties fail to make payment within forty-five (45) days from the date of BROCADE’s invoice to such Affiliate or EMC designated third party. 3.4 BROCADE Entity for Performance . With respect to any BROCADE offerings to be delivered within the United States or its territories, this Agreement is entered into, and all BROCADE Offerings shall be performed by or on behalf of BROCADE Communications Systems Inc., ("BROCADE-US"). When the Products or Support are to be delivered outside the United States or its territories or any Professional Services are bundled with such Products or Support, this Agreement is entered into, and shall be performed by or on behalf of BROCADE Communications Switzerland SarL, ("BROCADE-Switzerland I"). For Professional Services to be delivered outside the United States or its territories at an End User Customer location on a standalone basis (without accompanying Products or Support bundled with the Professional Services), this Agreement is entered into, and shall be performed by or on behalf of BROCADE Communications Services Switzerland SarL, ("BROCADE-Switzerland II"). 4. INTELLECTUAL PROPERTY RIGHTS 4.1 Subject to Section 4.2, BROCADE grants EMC all appropriate rights and licenses worldwide, at no additional charge beyond its price for the Products, under BROCADE’s applicable patents, copyrights and other intellectual property rights, ("Intellectual Property Rights") as necessary for EMC to use, market, promote, lease, sell and distribute both directly and indirectly through third parties provided EMC and such third parties have entered into written agreements with terms and conditions providing that the Software may only be distributed in object code form pursuant to written license terms (which may be incorporated into EMC’s or third parties’ own license agreement) under which each End User Customer agrees (a) to operate and use the Software for its own internal business purposes, in the form of object code only, without the right to further license or sublicense, and (b) not to reverse assemble, reverse compile, or reverse engineer the Software in whole or in part, except as specifically permitted by law. Except EMC/Brocade Confidential
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as expressly herein stated, no other license is granted to EMC and all other rights are reserved to BROCADE and/or its licensors. 4.2 Software License . 4.2.1 Subject to the terms and conditions of this Agreement, BROCADE hereby grants to EMC a non-exclusive, worldwide, revocable (except as expressly provided in Section 4.2.4), royalty-free (except as set forth in this Agreement) right and license, under all copyrights, patents, patent applications, trade secrets and other necessary intellectual property rights of BROCADE, to (i) use, execute, and display Object Code Software of BROCADE used in the operation and support of the Product, including upgrades, updates, bug fixes or modified versions or backup copies of the same, in object code form, in conjunction with, or for use with Products, (ii) distribute or license the Software, in object code form, as part of, in conjunction with, or for use with Products sold or leased by EMC to End User Customers, and (iii) authorize, license and sublicense third parties to do any, some, or all of the foregoing provided EMC and such third parties have entered into written agreements with terms and conditions providing that the Software may only be distributed in object code form pursuant to written license terms (which may be incorporated into EMC’s or third parties’ own license agreement) under which each End User Customer agrees (a) to operate and use the Software for its own internal business purposes, in the form of object code only, without the right to further license or sublicense, (b) not to reverse assemble, reverse compile, or reverse engineer the Software in whole or in part, except as specifically permitted by law. EMC shall distribute the Software to End User Customers pursuant to EMC’s end user license agreement, attached set forth specifically in Exhibit K, as updated by EMC from time to time, except as specifically agreed to between the parties. 4.2.2 Neither EMC nor EMC’s Resellers shall have the right to (i) modify or adapt the Software for other products or create derivative works of the Software, (ii) decompile, reverse engineer, or disassemble the Software for purposes of designing similar products, or (iii) use or distribute the Software other than in connection with the use or distribution of the Products. 4.2.3 EMC agrees that the foregoing licenses do not grant any title or other right of ownership to the Software and that BROCADE owns and shall continue to own all right, title and interest in and to the Software. 4.2.4 Upon any termination or expiration of this Agreement, EMC’s rights set forth in this Section 4.2 shall terminate except as follows: (i) End Users shall be permitted continued use of the Software in conjunction with the operation of the Products so long as they are not in breach of an end user license agreement similar to EMC’s end user license agreement attached hereto as Exhibit K, and (ii) EMC shall retain a nonexclusive, worldwide license to use and execute the then-current version of the Software internally (in object code form only) for the sole purpose of assisting End Users with the maintenance of the Products purchased from EMC. 4.2.5 There are two methods by which Software Licensing takes place. The first is the Royalty Payment Process as defined in Exhibit I. All remaining Software licenses are purchased via the standard procurement process as defined in Section 7, "Forecasts, Orders and Delivery". EMC/Brocade Confidential
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4.3 Except as otherwise specified in a written agreement between EMC and BROCADE, as between EMC and BROCADE, the rights in the Products are and will remain the sole and exclusive property of BROCADE and its vendors, if any, whether the Products are separate or combined with any other products. Unless otherwise limited by such written agreement, BROCADE’s rights under this Section, will include, but not be limited to (i) all copies of the Software for the Products, in whole or in part; (ii) all intellectual property rights in the Products; and (iii) all modifications to, and derivative works based upon the Products. 4.4 EMC hereby grants to BROCADE, and BROCADE hereby accepts a royalty-free, personal, worldwide, non-exclusive, non-transferable right and license to use those EMC marks designated by EMC solely on Product and collateral materials provided to EMC or on behalf of EMC. BROCADE shall use EMC, the EMC logo, EMC’s brand name for the Product, and any other EMC mark only during the term of this Agreement, only in connection with its manufacture, distribution and support of the Product for EMC in accordance with the terms of this Agreement, and only in accordance with EMC’s written guidelines for such usage. BROCADE shall not use any such EMC marks in connection with any business conducted by BROCADE other than dealings with the Products in accordance with the terms of this Agreement. BROCADE agrees that its use of the EMC marks shall not create in its favor any right, title or interest therein and acknowledges EMC’s exclusive right, title and interest thereto. BROCADE agrees that it will not use, without EMC’s prior written consent, any mark which is likely to be similar to or confused with any of EMC’s trademarks. 5. PRICE, PAYMENT AND MARKETING HOLD-BACK 5.1 Prices and Updates . The prices to be paid by EMC for any Product(s) ordered pursuant to this Agreement are set forth in Exhibit A. BROCADE will give written notice to EMC of updated pricing and the updated pricing shall apply to BROCADE shipments delivered after the effective date as defined within the most current Exhibit A. Prices will not increase, except as agreed to by EMC. The Parties will participate in scheduled Quarterly pricing reviews with the objective of achieving quarterly price reductions and consider reductions in pricing based on market conditions and reductions in Product costs. In pursuing cost reductions hereunder, BROCADE agrees to use reasonable commercial efforts in the normal course of business to value engineer the Products so as to reduce the unit cost to EMC throughout the term of this Agreement. 5.2 Payment. Terms of payment are [**] calendar days from the date of receipt of a correct invoice provided that the invoice is issued on or after the day the applicable Product(s) is shipped from BROCADE to EMC. Payment of an invoice shall not constitute or imply acceptance of the Product or relieve BROCADE of any obligations assumed under this Agreement, nor prevent EMC from asserting any other rights it may have under this Agreement. Each Product shipment shall be invoiced by BROCADE upon shipment, and paid for by EMC when due, without regard to other scheduled deliveries, with the exception of the Royalty Payment Process as defined in Exhibit I. All prices and fees described in this Agreement are in United States dollars and all payments hereunder shall be made in United States Dollars (i) by electronic wire transfer for international shipments, or (ii) by electronic wire transfer or check for domestic shipments.  

EMC/Brocade Confidential
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5.3 Taxes . EMC will attach any applicable resale certificate to this Agreement. Except as exempted by the resale certificate, EMC shall include proper sales, value added, use, property, excise and like taxes, import duties and/or other applicable levies (" Tax ") on all payments due to BROCADE. If EMC is required by any national government to withhold from any payments specified herein Tax attributable to BROCADE as a result of such payment, then EMC will withhold such Tax. 5.4 Marketing Development Funds . BROCADE may provide marketing development funds in accordance with a mutually agreed to plan that may be adjusted from time to time as agreed to by the parties. 5.5 Additional Product Discounts . BROCADE and EMC shall establish a rebate process for review and reconciliation of additional Product discounts which may be requested by EMC from time to time on account of significant order size, strategic customer accounts, or to meet competitive pricing from competing manufacturers. 5.6 Favorable Pricing. BROCADE represents and warrants that the prices for Products will not be less favorable than prices applicable to sales by BROCADE to any other like customer purchasing like or lesser quantities of substantially comparable products under similar terms and conditions. If at any time during the term of this Agreement BROCADE accords to any other such customer more favorable prices, BROCADE will immediately offer to sell the Products to EMC at equivalent prices accorded to such other customer. 6.  TITLE AND RISK OF LOSS . Except as set forth in Section 4.2.3 with regard to title to the Software, title to Products purchased by EMC and the risk of loss or damage in the goods shall pass to EMC upon delivery as defined in Section 7. 7. FORECASTS, ORDERS, AND DELIVERY [NOTE: EMC REQUEST] 7.1 EMC Forecasts . The [**] will be used to [**] and [**] and [**] [**] as [**] in a [**] [**] will provide [**] via the [**] by [**] which shall include any [**] to [**], the [**] of [**] that [**] and [**] the [**]. The [**] will provide [**] for [**] and [**] for an [**] shall [**] its [**] and [**] of such [**] and [**] within [**] after [**] to the provisions of this Agreement. [**] is [**] to the provisions detailed in [**] shall [**] within[**] of receipt [**] which shall [**] any [**] and shall [**] if applicable. 7.2 Purchase Orders EMC and BROCADE agree to three (3) purchase processes depending on business requirements as agreed by the parties: Drop Ship Process, Standard Purchase Process and Kanban Process. Purchase order numbers shall be referenced on all correspondence, invoicing, and packing slips relating to each order. Nothing contained herein shall prohibit EMC from purchasing Spares or replacement parts from any other vendor, provided, however, that BROCADE shall have no responsibility with respect to such Spares purchased from any other vendor.  

EMC/Brocade Confidential
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7.3 Purchase Orders — Drop Ship Process and Standard Purchasing Process 7.3.1 Procedures for Submission. EMC shall submit a written or electronic purchase order or Sales Order Releases for all Product(s) ordered from BROCADE. Purchase orders or Sales Order Releases shall specify EMC’s part numbers and total dollar amount. The actual shipping destination will be specified on EMC’s Sales Order Release. For EMC purchase orders or Sales Order Releases for quantities of Product(s) within BROCADE’s supply commitment, BROCADE shall accept such purchase orders or Sales Order Releases at lead-time, provided such purchase orders or Sales Order Releases comply with the terms of this Agreement. Sales Order Releases in excess of BROCADE’s supply commitment will be fulfilled on a commercial efforts basis. In the event of a conflict between the provisions of this Agreement and the terms and conditions of EMC’s purchase order or Sales Order Release, the provisions of this Agreement shall prevail. Any additional terms contained in EMC’s purchase orders or Sales Order Release or BROCADE’s order acknowledgements shall not be binding unless accepted by the other party in writing. Additional procedures and requirements for order processing and fulfillment are specified in the mutually agreed to SOP. 7.3.2 Shipping Products. BROCADE will deliver Product(s) only upon receipt of EMC’s Sales Order Releases or standard purchase orders and within lead-times specified in mutually agreed to SOP. 7.3.3 Supply Flexibility 7.3.3.1 Sales Order Release. EMC shall have the right to request to cancel or reschedule prior to shipment of any Sales Order Release. Any accepted cancellation or rescheduling shall be without cost or charge of any kind to EMC, provided that if cancellations exceed acceptable levels, the parties will work together to reduce the number of cancellations. 7.3.3.2 Purchase orders and DSRs liability. If EMC’s reschedule request moves Product outside of EMC’s current fiscal quarter, the maximum dollar value as committed by BROCADE during the last month of EMC’s Quarter will determine EMC’s purchase liability prior to BROCADE’s end of quarter. Any liability will be documented, and the specific remedy for such liability will be agreed to by the parties within fourteen (14) days after EMC’s end of quarter. All notices of changes will be communicated in writing via the DSR. The dollar value of Products rescheduled out of EMC’s fiscal quarter may not be subsequently moved or cancelled. 7.3.3.3 Supply Reserve. EMC will request and BROCADE shall commit to next quarter pipeline material that will be made available prior to EMC’s end of quarter. Said pipeline will be communicated via DSR. EMC’s liability for requested and BROCADE committed next quarter pipeline shall be limited to [**] % of the dollar value of the maximum dollar value in the third month of EMC’s quarter, with exception of mutually agreed to end of life Products.  

EMC/Brocade Confidential
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7.3.4 Communications Regarding Orders. Purchase order numbers shall be referenced on all correspondence, invoicing, and packing slips relating to each order. 7.4 Purchase Orders — Kanban Process 7.4.1 KanBan Order Process. The KanBan order, delivery and reschedule process (the "KanBan Process") established herein shall be in addition to and an alternative to the Standard Process. EMC may order Products for placement into a BROCADE Consignment KanBan (as defined below) subject to issuance of Quarterly Purchase Orders and Release Notices (each as defined below); in which case the procedures set forth below shall apply. Notwithstanding anything herein to the contrary, EMC may continue to order Products pursuant to the order process in Section 7.3, provided that a sixty (60) day (or less if agreed to by the parties) advance notification in writing is provided to BROCADE. (a) A "KanBan" shall be a supply of Products in a fixed lot size as defined by EMC’s "KanBan Calculator Report". EMC may increase BROCADE’s Consignment KanBan inventory level above the quantities calculated by the KanBan Calculator Report solely as required to fulfill EMC’s remaining current quarter material requirements planning demand. Such increases will be made via False Pull Notices communicated to BROCADE. The KanBan Calculator Report uses the following formula to determine bin size: [1.5(LT)(ADD) + SS(ADD)] / EOQ, where LT = Lead Time which is made up of BROCADE process time plus Transit time. BROCADE process time is defined as the time from when BROCADE receives the replenishment notice until the time Product is on BROCADE dock to be picked up by the carrier. Transit time is the time from carrier pick up to delivery at EMC’s dock. ADD = Average Daily Demand is EMC’s quarterly demand quantity divided by 60 business days. SS = Safety Stock, a pre-determined number that EMC may decide to add. Currently Safety Stock is .5. EMC agrees that the SS number will not increase without BROCADE’s mutual consent. EOQ = Economic Order Quantity is determined by a specific calculation of pallet size and shipping economies.) Products to be stocked in: BROCADE Consignment KanBan - BROCADE owned Products that are provided to EMC for storage in one of the BROCADE Consignment KanBan Sites for the purpose of on-demand fulfillment of EMC’s requirements for Products. A "BROCADE Consignment KanBan Site" shall mean the warehouse locations identified in mutually agreed to SOP. (b) EMC will establish a quarterly purchase order and BROCADE will deliver products as detailed in EMC’s KanBan Calculator Report to the BROCADE EMC/Brocade Confidential
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Consignment KanBan sites within [**] of receipt of EMC’s written authorization to do so. EMC will maintain a minimum of [**] of purchase order coverage. EMC will also issue a DSR which will include EMC’s demand that will match EMC’s Purchase order coverage. BROCADE will fill in its supply commitment and return the DSR to EMC within [**]Business Days. BROCADE will make material available to support its supply commitment within the KanBan replenishment lead times detailed in Paragraph 7.4.1(c) below regardless of the quantity of products actually Pulled through this KanBan Process. BROCADE will be measured on making material available per EMC’s DSR demand and actual release notice fulfillment lead times. EMC will communicate changes to its demand via the DSR and update its purchase orders to match the DSR within [**] day of changes to the DSR demand. BROCADE will respond to DSR demand changes within a maximum of [**] Business Days. BROCADE will provide weekly supply updates via the DSR between 8pm ET Friday and 12:00 noon ET each Monday that will include any changes to BROCADE’s supply commitments and actual "make available" quantities from the previous week. BROCADE will promptly communicate any changes in supply commitments via the DSR. EMC’s liability is limited to the following which shall supercede the cancellation terms set forth in Section 7.3.3.2 above, when the parties are utilizing the KanBan process: [**] % of purchase price for Products located in BROCADE’s Consignment KanBans and replenishment notices in process that do not exceed the KanBan Calculator Report, which Products BROCADE is unable to reallocate to another customer using commercially reasonable efforts. EMC’s cancellation fee for such Products shall be calculated using the purchase price in effect as of the date that such Products were added to the BROCADE Consignment KanBan. BROCADE will use commercially reasonable efforts to reallocate these Products and EMC will not be charged a cancellation fee if BROCADE is successful. EMC purchase liability is limited to [**]% of EMC unique labels and manuals that are beyond the BROCADE Consignment KanBan quantities and within [**] calendar days of EMC’s purchase order delivery date. EMC has no purchase liability beyond [**] calendar days of EMC’s purchase order delivery date. In the event that EMC’s KanBan Calculator Report reduces the total amount of Products required in the BROCADE Consignment KanBan, then the excess in will be stated in sheet 2 of the KanBan Calculator Report. EMC will be liable for the excess Products detailed in sheet 2 of the KanBan Calculator Report, per terms established above.  

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(c) EMC may remove only complete KanBans from a BROCADE Consignment KanBan and shall thereby take delivery and possession of the applicable KanBan to support its customer demand. EMC is not required to take delivery of BROCADE Consigned KanBans until EMC has a customer sales order demand for such Products. EMC shall Pull KanBans from the BROCADE Consignment KanBan on a first-in first-out basis. EMC shall notify BROCADE within one (1) day after EMC physically removes a complete KanBan from a BROCADE Consignment KanBan (each such occurrence a "Pull"), and such notice shall be deemed a non-cancelable release order for replacement KanBans ("Release Notice"). EMC notification will be sent to BROCADE by 12:00 noon Eastern time every day as needed. The parties agree that pull notifications will be sent two times per day during the last five business days of BROCADE’s fiscal quarter, one by 12:00 noon Eastern time and one by 5 pm Eastern time. If EMC pulls material from the BROCADE Consignment KanBan during the last day of BROCADE’s fiscal quarter, notification will be sent per the previously defined fiscal quarter end notification schedule above. BROCADE shall apply the Release Notice against the then-open Quarterly Purchase Order. BROCADE will ship Products per Releases Notices and replenish KanBans within the following lead times: BROCADE Consignment KanBans will be replenished and False Pull Notices delivered within [**] Business Days for all products from receipt of EMC’s release notice and False Pull Notice, if within EMC’s purchase order quantities. BROCADE Consignment KanBans will be replenished per BROCADE’s commitment via the DSR, from receipt of EMC’s release notice if such notices are in excess of EMC’s purchase order quantities. If EMC’s release notice exceeds BROCADE’s current cumulative supply commitment, the BROCADE Consignment KanBan will be replenished per the DSR overall supply commitment. BROCADE will respond via E-mail with confirmation of receipt, and ship date, if within BROCADE’s supply commitment via the DSR, within two (2) normal business hours of receipt of EMC’s release notice. BROCADE will ship a replacement KanBan to the applicable KanBan Site for placement into the applicable BROCADE Consignment KanBan. (d) BROCADE shall ship BROCADE owned KanBans to be placed in a BROCADE KanBan Queue, via FCA point of Delivery where "Delivery" is defined in Section (f) below, including freight, provided that EMC has approved the shipping method and carrier in advance. Notwithstanding the foregoing, in the event of expedited shipments, BROCADE may choose the carrier at its sole discretion. (e) EMC shall provide the space for the BROCADE Consignment KanBans. All Products in the BROCADE Consignment KanBan shall be and remain the property of BROCADE, until such time as they are Delivered to EMC, as defined below. EMC will store each BROCADE Consignment KanBan in EMC’s facilities in a  

EMC/Brocade Confidential
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manner such that the BROCADE Consignment KanBan shall be segregated by a clear and durable physical delineation, separating the BROCADE Consignment KanBan from the other parts of the EMC location and from EMC’s other products, supplies, inventory, and equipment, and EMC shall conspicuously mark the area of each BROCADE Consignment KanBan Site to indicate BROCADE’s ownership of the KanBans. EMC shall have no right of ownership or control over the BROCADE Consignment KanBans. EMC will exercise the same degree of care to keep and maintain the KanBans as EMC uses with respect to its own inventory. EMC will implement and maintain commercially reasonable measures to prevent any loss, theft, damage, or destruction of the KanBans. (f) Products contained in a BROCADE Consignment KanBan shall be deemed to be "Delivered" to EMC for purposes of this Amendment when the Products are Pulled by EMC. Upon Delivery, EMC shall be deemed to be in receipt of the Products for purposes of Section 7.5.2 of the Agreement, and the Pull date shall equal the date the Release notice was communicated to BROCADE for purposes of Section 9 of the Agreement. BROCADE shall invoice EMC for such Products as detailed in EMC’s pull release notice in accordance with Section 5 of the Agreement. At such time, BROCADE shall also invoice EMC for the cost of shipping and insuring such Products, at agreed upon rates, from BROCADE’s manufacturing facilities to the BROCADE Consignment KanBan Site. Once a KanBan has been Pulled, no Product contained in such KanBan may be placed back into any BROCADE KanBan Queue, and the Product may only be returned by EMC in accordance with the terms set forth in Section 7 or Section 9 of the Agreement. (g) At all times the BROCADE Consignment KanBans will be kept free by EMC from all liens, claims, encumbrances, and interests of any kind. (h) EMC will allow access to a BROCADE representative to perform a count of KanBans held in each BROCADE KanBan Queue once per week at a time scheduled no less than twenty-four (24) hours in advance to verify weekly activity and numbers of KanBans on hand. BROCADE may, at its option, conduct an on-site audit to verify the count of KanBans and physically inspect the KanBan Site. (i) During the term of this Agreement and for as long as any BROCADE Consignment KanBans are held at EMC’s facilities, EMC shall maintain policies of insurance for the Products to cover the replacement value and shall provide site access and inspection rights to BROCADE. BROCADE shall provide EMC no less than twenty-four (24) hour notification prior to a requested audit and inspection. 7.4.6 Packaging. All Products shall be packaged, marked and otherwise prepared in accordance with EMC’s Merge in Transit ("MIT") specifications stated in the documentation and all applicable government regulations and best industry practices. Packaging for export shipments from the United States may also be subject to specific instructions which shall be provided by EMC prior to shipment. 7.4.7 Late Delivery and Supply Availability . If BROCADE anticipates that it will not supply the Product by the committed delivery date, BROCADE shall notify EMC immediately. The notification may be communicated by email, provided that BROCADE shall use reasonable efforts to obtain EMC’S acknowledgment of the notice of anticipated EMC/Brocade Confidential
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delay. BROCADE and EMC will jointly develop alternatives to resolve any late delivery of the Product, including use of premium routing. BROCADE will develop recovery plans with new committed delivery dates and communicate such plans to EMC within twenty-four (24) hours of missed delivery. If BROCADE is unable to deliver the Product on the committed delivery date, EMC may require BROCADE to use premium routing at BROCADE’s expense. In the event BROCADE has an allocation situation, BROCADE shall use an allocation formula for EMC no less favorable than that of any of BROCADE’s other customers. 7.5 Shipment/Delivery and Export/Import. 7.5.1 Documentation. BROCADE shall provide EMC with one (1) electronic master copy of the most current Documentation for each Product. BROCADE shall provide EMC with all updates and changes to such documentation as BROCADE makes them generally available to its customers. BROCADE will also provide a reasonable number of copies of appropriate documentation for the purpose of qualification, sales, marketing, training, service, and support of Product(s) under this Agreement. 7.5.2 Delivery Procedures. Delivery shall be F.C.A. Origin (Incoterms 2000). BROCADE shall use EMC’s designated carriers. Title to Products (or, with respect to Software, the media bearing Software) and risk of loss of Products shall pass to EMC upon signing of the bill of lading by EMC or EMC’s carrier for the standard purchase and drop ship processes. Title and risk of loss for the Kanban Process shall pass to EMC upon removal of Kanbans from BROCADE’s Consignment Kanban. Title to the Software itself shall at all times remain with BROCADE. Shipping and insurance costs shall be the responsibility of EMC. EMC may modify its routing instructions from time to time and will provide BROCADE with an updated version of any such modified instructions. EMC shall arrange for transportation from BROCADE’s dock to the designated ship to address. If there is any conflict between the current version of routing instructions provided to BROCADE and the contents of this Section 7.4, then the current routing instructions will prevail as to EMC’s carrier and routing information. 7.5.3 Delivery Information . BROCADE will provide, in the support of delivery of products, including without limitation, drop shipment information, purchase order number, date of shipment, carrier waybill number, invoice number and serial numbers shipped to EMC. Each shipment of Product by BROCADE shall include a packing slip which contains at a minimum, (i) BROCADE name, (ii) box number (e.g., 1 of 3, 2 of 3), (iii) receiving address, (iv) EMC’s purchase order number, (v) EMC’s part number, (vi) shipping quantity, (vii) EMC’s Sales Order number if applicable, and (viii) date of shipment. BROCADE will provide all required shipment documents with Drop Ship Sales Order shipments to include:

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7.5.4 Timely Delivery. The delivery dates shall not exceed the sales order lead times stated in the mutually agreed to SOP. Deliveries will be considered on time if they are made no more than [**] Business Days earlier or [**] days later than the delivery date established by such sales order lead times. 7.5.5 Additional Product Information. BROCADE will provide the following information about its Product in writing within two (2) weeks of receiving a written request from EMC: (i) country of origin; (ii) NAFTA preference criteria; (iii) harmonized scheduled tariff classification number; (iv) NAFTA certificate; and (v) export commerce control number. 8. MANDATORY AND OPTIONAL ENGINEERING OR PROCESS CHANGES 8.1 Process Changes. Changes to BROCADE’s controlled manufacturing or repair processes may be periodically reviewed by EMC, and any significant changes (those that affect field quality yields or total process yields) or the type of stress testing performed will be mutually agreed to in advance by BROCADE and EMC. Quality information on field and process performance will be furnished to EMC on a monthly or quarterly basis. 8.1.1 EMC Requested Changes. EMC may request, in writing, that BROCADE evaluate free of charge a change to the method of packing, packaging, or shipment, or evaluate an engineering change to the Product which is not a Mandatory Engineering Change (as defined in Section 8.1.2 below). Such request will include a description of the proposed change sufficient to permit BROCADE to evaluate its feasibility. Acceptance of such proposed changes shall not be unreasonably withheld by BROCADE. If such proposed change is accepted by BROCADE, BROCADE shall notify EMC in writing within [**] business days from date of request, of the terms and conditions under which it would make the change requested by EMC. BROCADE’s written evaluation shall state the cost, if any, created by the changes and the date BROCADE will be able to implement such change. If the proposed change does result in a cost increase to EMC, EMC must provide prior written approval to BROCADE before the change is implemented. In the case of evaluating the effect such changes may have on regulatory agency certifications, the above referenced [**] day period may be extended to take into account the time periods necessary for those regulatory agencies to carry out their evaluations. 8.1.2 Mandatory Changes. In the event that changes are required i) to make the Products conform to safety/regulatory agency requirements, ii) or if the Product has been mutually determined to meet the criteria of an Epidemic Failure, iii) or the Parties agree there could be latent quality defects of a magnitude that would result in an Epidemic failure rate, iv) against the criteria established in the Product Specification and a mutually agreed to Quality Plan, as amended from time to time ("Mandatory Engineering Changes"), BROCADE shall immediately implement the Mandatory Engineering Changes in new production of the Product without charge to EMC.  

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BROCADE and EMC shall discuss and mutually agree upon one or more of the following remedies for implementing Mandatory Engineering Changes on previously delivered Product. All such changes shall [**]. BROCADE shall use commercially reasonable efforts to immediately implement the selected remedies. EMC may request an RMA number and return the affected Product to BROCADE or an authorized repair facility for repair or replacement. [**] EMC may request and BROCADE will ship Mandatory Engineering Change kits for Products in accordance with a Field Change Order that EMC will develop. BROCADE shall provide EMC with installation instructions necessary to implement the Mandatory Engineering Changes at EMC’s or EMC’s customer’s locations. [**] . BROCADE may be asked to provide on-site technical assistance at the appropriate location to install the Mandatory Engineering Change. EMC may request that BROCADE or a BROCADE approved third party maintenance organization install the Mandatory Engineering Change kits for the affected Product solely under EMC Customer Service instruction. [**] BROCADE shall provide EMC with written notice of any need of Mandatory Engineering Changes as soon as possible after BROCADE becomes aware of the need of such change. EMC shall have the option to cancel open purchase orders without penalty if the Mandatory Engineering Changes are incompatible with or adversely affect performance of Products purchased by EMC and such changes are not made compatible with the Products or EMC is not provided with an acceptable remedy within [**] calendar days after BROCADE receives notification from EMC of its intent to cancel its open purchase orders. 8.1.3 BROCADE Requested Changes . Both parties recognize that there may be optional changes proposed by BROCADE affecting form, fit or function which are not Mandatory Engineering Changes ("Optional Engineering Changes"). Optional Engineering Changes may also include changes in processes or materials. BROCADE shall provide EMC copies of all Engineering Change Notices affecting Form, Fit, Function (as defined below), active components, or reliability. BROCADE will also provide copies of Process Change Notification forms related to mutually agreed upon EMC specific manufacturing or test processes that would affect the following: Form: Defined as a change in the dimensions or the external appearance of the Product. Fit: Defined as a change that affects the physical interchangeability of the Product or a field replaceable unit ("FRU") of the Product. Function: Defined as a change that introduces a capability not available in previous connectivity interface, software, firmware, or operator interface or affects the interchangeability of the FRUs within the Product.  

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The notice required above shall include a written description of the proposed change, including the reason for the change and the expected effect of the change on the Product, including its price. BROCADE will send such change proposals to EMC’s designated BROCADE engineer, via mail, email, or fax, as agreed between the parties. BROCADE will evaluate whether the changes, if accepted by EMC, would be likely to require EMC to re-qualify the Product and will include a recommendation for or against re-qualification. In the event EMC does not acknowledge or respond to BROCADE’s written notice within [**] days, such change will be deemed to have been accepted. If EMC rejects the Optional Engineering Changes, EMC may require BROCADE to continue supplying the unaltered Product or to provide EMC with opportunities for a last time buy of the unaltered Product. BROCADE will phase-in changes as mutually agreed to by EMC into Product on EMC’s open purchase orders and into Product going through BROCADE’s repair process at no charge. Unless EMC specifically rejects such changes, each version of the Product will possess at least the same features and functions, if not more, than are offered by BROCADE in the Product or similar product offered by BROCADE for the same server/host environment. BROCADE shall introduce all new non-exclusive features or functions for the Product as early as the introduction in any other similar BROCADE products for that environment. Any changed Product resulting from application of these Sections 8.2, 8.3, 8.4 shall be considered added as Product to this Agreement, and subject to its terms and conditions. 8.2 New Technology. If BROCADE makes generally available any new or improved OEM storage product, BROCADE agrees to give EMC the right to purchase such new model, options, features or improvements under the terms and conditions of this Agreement, at prices mutually agreed to by BROCADE and EMC in accordance with the terms of this Agreement. 8.2.1 Unless EMC specifically rejects such changes, each version of the Product will possess at least the same features and functions, if not more, than are offered by BROCADE in the Product or similar standard product offered by BROCADE for the same server/host environment. Unless EMC specifically rejects such changes, BROCADE shall introduce all new non-exclusive features or functions for the Product as early as the introduction in any other similar BROCADE products for that environment. 8.2.2 BROCADE agrees to offer to sell all generally available product features and functions to EMC as early as it does to any of its other customers.  

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8.3 Labeling and Regulatory Compliance. 8.3.1 All Product shall be packaged, marked and otherwise prepared in accordance with applicable specifications, including but not limited to EMC’s Merge in Transit ("MIT") specifications, provided to BROCADE from time to time, all applicable government regulations as attached in Exhibit H, which may be amended by mutual agreement from time to time, and if none are specified or required, with good commercial practices to obtain lowest transportation rates while maintaining the safety of the Product. All Product shall be private labeled in accordance with EMC branding instructions as outlined in Exhibit G. Packaging for export shipments from the United States may also be subject to specific instructions. BROCADE will notify EMC of any charges incurred by BROCADE for such export shipments prior to invoicing EMC for these charges. 8.3.2 EMC Modification. EMC represents that in no event shall EMC alter any Product in any way to modify the performance characteristics of that Product without the prior written permission of BROCADE. The appropriate identification labels, regulatory agency marks and verification of FCC Class A Compliance or the licensed agency number are indicated on the Products at the time of shipment. EMC shall not modify any regulatory agency marks or labels affixed to the Products by BROCADE. BROCADE hereby disclaims any liability for the possession, use, resale, or operation of any Products which, as a result of an alteration by EMC or any third party (unless such third party is a BROCADE authorized third party service provider), affects its compliance with the applicable regulations and/or requirements as stated above. 8.4 Product Discontinuance. BROCADE reserves the right to discontinue Products by notifying EMC in writing at least [**] days prior to the discontinuance date, subject to a mutually agreed upon end of life plan. Prior to such discontinuance date, EMC may place with BROCADE a final, non-cancellable, binding purchase order for such discontinued Product including Spares. Such final, non-cancellable, binding purchase orders may specify that the requested Products be shipped to EMC or EMC’s Customers over the [**] month period following the discontinuance date. 9. WARRANTY 9.1 Product Warranty. BROCADE warrants that the Products (except Object Code Software) purchased will, under normal use and service, conform to Product specifications at the time of shipment and be free from defects in material and workmanship for [**] months from the date of shipment. Pre-released McDATA products will retain the warranty period that it held upon initial release of the product. BROCADE will, as mutually agreed upon and without charge to EMC, promptly repair or replace, any Product which is determined to be defective and which is returned to BROCADE within this warranty period, provided the Product has not been damaged, subjected to misuse, altered, improperly repaired or maintained by EMC or third parties in a manner which BROCADE reasonably determines to have adversely affected performance or reliability. EMC’s exclusive remedy and BROCADE’s sole liability hereunder is limited to the repair or replacement of the  

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defective Product, and if neither repair nor replacement is possible, a refund of the monies paid for such non-conforming Product, and does not include any labor related to the removal and/or subsequent reinstallation thereof, except as defined in Section 8.1.2. BROCADE agrees that if a FRU under warranty is returned by EMC to BROCADE [**] times, BROCADE shall replace such FRU and notify EMC of such serial number. Details of BROCADE’s policies regarding the repair or replacement of warranty returns will be reviewed and negotiated in good faith by the parties hereto. Product may consist in part of used components which are warranted as equivalent to new when used in the Product. The process for returns will be documented in Exhibit D as agreed to by the parties and may be updated from time to time. The above warranty extends solely to EMC (and shall not be transferred or assigned in any manner) and all warranty claims must be generated by EMC. Repair or replacement of component parts by BROCADE shall not extend or decrease the Product warranty. 9.2 Software Warranty. BROCADE warrants that the licensed Object Code Software will, under normal use and service, substantially conform to Product Specifications and its media be free from defects in material and workmanship for [**] calendar days from the date of shipment. EMC’s exclusive remedy and BROCADE’s sole obligation under this warranty shall be to repair or replace any defective Object Code Software media and/or to remedy any non-conformance of the Object Code Software to enable it to materially conform to the functional specifications set forth in its applicable documentation, and if neither is possible, a refund of the monies paid for such non-conforming Product. This warranty is only effective when the Object Code Software is used on or in conjunction with the Product(s) to which it relates. Further, the warranties are contingent upon proper use of the Object Code Software by EMC or EMC’s Customers, and will not apply if the Object Code Software has been modified without the prior written consent of BROCADE. BROCADE makes no warranty that use of the Object Code Software will be uninterrupted or error-free. 9.3 Title Warranty and Compliance with Laws. Except as set forth in Section 4.2.3 with regard to title to the Software, BROCADE warrants that EMC shall receive good title to all Products delivered to EMC under this Agreement free and clear of all liens, encumbrances, and in performing under this Agreement BROCADE shall, and each Product delivered under this Agreement shall, comply with all applicable country, state and local, laws, statutes, ordinances, rules, regulations and codes. BROCADE’s sole obligation and EMC’s sole remedy for breach shall be repair or replacement of non-conforming Product, at EMC’s option, and if neither is possible, a refund of the monies paid for such non-conforming Product. 9.4 Disclaimer. THE WARRANTIES AND CONDITIONS SET FORTH HEREIN AND THE OBLIGATIONS AND LIABILITIES OF BROCADE HEREUNDER ARE IN LIEU OF, AND EMC HEREBY WAIVES, ALL OTHER EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY OR NONINFRINGEMENT.  

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Except as specifically authorized in this Agreement, each party acknowledges and agrees that it will not make any representations or warranties on behalf of the other. 9.5 Marketing Rights Warranty. BROCADE hereby warrants that it has the unrestricted worldwide right to manufacture, transfer, sell, and/or deliver to EMC the Products purchased hereunder. Further, BROCADE agrees that it will not assume or assert any restriction which would prevent EMC and its Resellers from using and marketing such Products anywhere in the world. 9.6 Epidemic Defects. BROCADE will repair or replace, at no charge to EMC, any epidemic defects found to exist in the Products at any time within [**] (Epidemic Failure Period). For purposes of this Agreement, epidemic defects shall mean a defect rate of [**] or more occurring with the same Product or related products for the same root cause over any consecutive [**] day period (Epidemic Defects). In the event BROCADE’s Product’s failure rate exceeds the Epidemic Defects during the Epidemic Failure Period, at BROCADE’s expense, BROCADE will sort, screen, repair or replace EMC’s Product, including installed Products, Products pending installation, and Spares which are subject to such failure; and conduct a thorough investigation into the failure’s root cause, and with EMC’s concurrence, implement corrective action. The parties will mutually agree with EMC on the time required to complete servicing/correcting such Products. The decision to repair or replace the Product will be mutually agreed to by both EMC and BROCADE. 9.7 Plug and Play Failures. In the event a Product fails within [**] hours of installation (Plug and Play Failure), provided such Product is within the warranty provisions herein, EMC’s technical support personnel will work with EMC’s Product Support Engineers (trained on the BROCADE Products) and BROCADE to attempt to remedy such technical difficulty or replace the failed part with one of EMC’s Spares and return the failed part to BROCADE. Upon return of the failed part, BROCADE will analyze the Plug and Play Failure, and repair or replace such part in accordance with the terms outlined in Section 9.1 or 9.2 and fix the root cause of such failure, and develop a mutually agreeable cure plan. A Plug and Play Defect is hereby defined as (i) a Product that fails at the time of installation; or (ii) a defect resulting from incompleteness in fulfilling a purchase order which is detected at the time of installation; or (iii) a defect in the accuracy in fulfilling a purchase order which is discovered at the time of installation. (a) In the event a Plug and Play Defect in a Product is detected, and such Product is within the warranty provisions herein, EMC’s technical support personnel will work with BROCADE to attempt to remedy such technical difficulty or replace the failed part with one of EMC’s Spares and return the failed part to BROCADE. Upon return of the failed part, BROCADE will analyze the Plug and Play Defect, and repair or replace such part in accordance with the terms outlined in Section 9.1 or 9.2, and fix the root cause of such failure, and develop a mutually agreeable cure plan. (b) In the event a Plug and Play Defect is detected which results from the incompleteness or inaccuracy in fulfilling a purchase order, EMC will report the defect to BROCADE, and  

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BROCADE will cure the defect, and will analyze the defect, identify the cause of the incompleteness or inaccuracy, and develop a plan to fix the cause. 10. TECHNICAL SUPPORT, REPAIRS, AND TRAINING. 10.1 Training. BROCADE shall provide training [**] to EMC employees on all new release by a mutually agreed upon date that is prior to GA. This training will cover the hardware, software, and firmware that are part of the release as well as installation, setup, operation, and operational issues. This training may be delivered via documentation, Web Based Training, or Instructor Led Training as appropriate and in a consistent manner in which BROCADE provides training to its own employees. As required and as mutually agreed to between EMC and BROCADE, one Instructor Led class will be conducted in each of the major geographies (Americas, EMEA, and APJK). BROCADE shall provide soft copy of all trainings to EMC in the form of a pdf file. EMC has the right to rebrand, reproduce, and create derivative works of all training materials for the purpose of training its internal employees, channels of distribution and service partners on the sales and service of Products. BROCADE will make the web version of the update course available to EMC employees and authorized service providers via BROCADE’s Learning Management System [**]. BROCADE may make available a Web Based Training (eStudy) break/fix course for each newly launched product if such course is made generally available to its OEM customers. 10.2 Technical Support Terms. Additional terms and conditions governing technical support by BROCADE and/or EMC, repairs and training are set forth in and attached hereto as Exhibit C, D and E. 10.3 Qualification Units. BROCADE and EMC will mutually agree to provide the number and timing of units required to qualify new products and major revisions within a Product. BROCADE agrees to provide these Products at no charge to EMC under loan agreements. 11. INDEMNIFICATIONS 11.1 BROCADE agrees to indemnify, defend and hold EMC harmless from any and all claims, demands, suits, actions, judgments, damages, liabilities, costs and expenses (including reasonable attorney’s fees and costs) arising from any third party claims brought or awarded against EMC that Products infringe any patent or copyright, or trade secret, provided EMC promptly notifies BROCADE in writing of the claim, and grants to BROCADE the sole control of the defense of any action and all negotiations for settlement and compromise. EMC is entitled to be represented in any such action by its own attorneys at its own expense. BROCADE shall not be liable for any claim of infringement to the extent that it is based upon any Product or Software which is altered or modified by EMC without BROCADE’s authorization. In the event the Products become, or in BROCADE’s opinion are likely to become, the subject of an infringement, BROCADE shall have the right, at its option and expense, to (i) obtain the rights to continued use of such Product, or (ii) replace or modify the Product so that it is no longer infringing, or (iii) refund to EMC the price paid for the Product less a reasonable amount for use,  

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damage or obsolescence in accordance with a straight-line depreciation schedule over a five (5) year life. 11.2 EMC agrees to indemnify, defend and hold BROCADE harmless from any and all claims, suits, losses, expenses and liabilities arising from any third party claim brought or awarded against BROCADE as a result of any claim, judgment or adjudication against BROCADE alleging bodily injury or death caused by EMC in conducting its activities under this Agreement, including without limitation any claims relating to the modification of the Products by EMC or by third parties that modified the performance or contents of the Products, or to the sale or distribution of non-BROCADE goods or services in conjunction with the Products, provided that (i) BROCADE promptly notifies EMC in writing of the claim, (ii) EMC shall have the sole control of the defense of any action and all negotiations for settlement and compromise and (iii) BROCADE shall reasonably cooperate with EMC. BROCADE is entitled to be represented in any such action by its own attorneys at its own expense. 11.3 BROCADE shall indemnify and defend EMC against all claims, suits, losses, expenses and liabilities arising from any third party claim brought against EMC alleging bodily injury, personal injury, death, and property damage directly caused by the failure of any Product to conform to its specification or to any applicable laws or regulations or through the negligence of BROCADE or any person for whose actions BROCADE is legally liable, provided that, in either case (i) EMC has notified BROCADE promptly in writing of any such claims, (ii) BROCADE shall have sole control of the defense of such claims and all negotiations for its settlement and compromise, provided that EMC’s consent is required for any settlement that calls for payments in excess of the liability cap specified in Section 15, such consent not to be unreasonably withheld and (iii) EMC shall reasonably cooperate with BROCADE in the defense or settlement of such claims. EMC is entitled to be represented in any such action by its own attorneys at its own expense. BROCADE shall not be liable for any claims under Section 11.3 to the extent that they are solely based upon any Product that has been damaged, submitted to misuse, altered, improperly installed, repaired or maintained by EMC or third parties in a manner which BROCADE reasonably determines to have adversely affected performance or reliability. Entire Liability . THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATION OF BROCADE AND EMC TO THE OTHER PARTY OR THIRD PARTY AND THE EXCLUSIVE REMEDY WITH RESPECT TO ANY INDEMNITY OBLIGATIONS HEREIN.

12.1 BROCADE hereby agrees that it will prepare for EMC a customized version of BROCADE’s standard documentation for the Products. Such documentation will include planning, installation and operation, service and user guides, as appropriate. BROCADE retains ownership of such BROCADE-customized documentation. However, EMC shall have all right, title, and interest in, and sole liability for, any portion of the altered Product Documentation prepared by EMC. 12.2 Except as otherwise provided in Exhibit A hereof, and subject to the retention of all copyright notices and/or confidentiality legends, EMC shall have the right to copy any BROCADE-supplied or BROCADE-customized Product documentation for use internally by its employees and Resellers and for publicity and training purposes. EMC shall have the right to EMC/Brocade Confidential
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reproduce such Product documentation from the masters supplied to it by BROCADE. EMC shall provide BROCADE with a copy of such reproduced Product documentation for verification, and BROCADE agrees to perform such verification on the first version of any release within [**] Business Days of receipt of such reproduction(s). Further, EMC shall have the right to reproduce and distribute such Product documentation to its Resellers and End User Customers. Such license shall continue during the term of this Agreement and [**] years after the date of last shipment by EMC of the Products purchased under this Agreement. BROCADE shall provide EMC with all updates and changes to such documentation as they become available to BROCADE. 13. IDENTIFICATION OF PRODUCTS AND TRADEMARK RIGHTS . 13.1 Identification of Products. Except for certain Products identified in Exhibit A, BROCADE and EMC hereby agree that Products sold hereunder will be labeled and marketed by EMC under EMC’s trademarks. BROCADE shall have the right to affix and EMC shall not remove or cover over a nameplate indicating model number, serial number, patent number and/or patent pending legends, and any other markings which may be required by law or by regulatory agencies. BROCADE and EMC agree that, in sales promotions, advertising literature and any other public references, BROCADE and EMC will identify such Products as EMC’s Products. 13.2 Operational Provisions. Special provisions for identifying Products being purchased by EMC are set forth in the attached Exhibit G and mutually agreed to SOP. 14. CONFIDENTIALITY OF INFORMATION 14.1 Both parties may, in connection with this Agreement, disclose to the other party information considered confidential and proprietary information of the disclosing party ("Proprietary Information"). Information shall be considered Proprietary Information if identified as confidential in nature by the disclosing party at the time of disclosure. Such Proprietary Information may include, but is not limited to, trade secrets, know-how, inventions, techniques, processes, programs, schematics, data, customer lists, financial information, and sales and marketing plans. Each party shall at all times during the term of this Agreement and for three (3) years after its termination, keep in confidence and trust all such Proprietary Information and shall not use such Proprietary Information without the prior written consent of the other party, except (i) as permitted by the terms of this Agreement, (ii) as may be necessary to fulfill its obligations under this Agreement, and/or (iii) to operate, maintain, or support the Products. Furthermore, neither party shall, without the prior written consent of the other party, disclose such Proprietary Information to any person except to those of its employees, Resellers, or consultants who need to know such Proprietary Information to fulfill that party’s obligations under this Agreement or to operate, maintain, or support the Products, provided that such employees, Resellers, or consultants are parties to written agreements with such party to keep in confidence such Proprietary Information; such agreements will meet the minimum requirements outlined in this Section 14.1, or versions thereof adapted to Resellers, or consultants, in accordance with any applicable local laws, and such party shall use reasonable commercial efforts to prosecute material violations of such agreements with respect to the Proprietary Information.  

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It is understood that each party is not granting to the other party any rights in the Confidential Information, and all right, title and interest in the Confidential Information shall remain the property of the disclosing party. Upon termination of this Agreement and upon request, the receiving party shall, on a reasonable commercial efforts basis, promptly return all Proprietary Information under its control and all copies thereof to the disclosing party, except that the receiving party shall be permitted to retain such copies of the Proprietary Information as are necessary to operate, maintain, or support Products previously purchased pursuant to this Agreement. The non-disclosure provisions of this Section shall not apply to information which (i) becomes publicly available through no act of the receiving party; (ii) is required to be disclosed by the law of any government which has jurisdiction over such information, provided that the disclosing party is given prior notice of any such disclosure; (iii) was previously known at the time of its receipt without similar restrictions; (iv) is released by written mutual agreement of BROCADE and EMC; (v) can be shown by the receiving party to have been provided by the disclosing party to others without similar restrictions; or (vi) can be documented, by adequate written records, to have been independently developed by the receiving party without reference to or use of any Proprietary Information. 14.2 Neither Party will originate, or authorize, assist or permit another party to produce, any written publicity, news release, marketing collateral or other publication or public announcement whether to the press, actual or potential customers, stockholders, or others, relating to this Agreement, to any amendment hereto or to performance hereunder or to the existence of an arrangement between the parties without prior written approval. Notwithstanding the above, neither party shall unreasonably withhold approval of disclosure of the Agreement for the purpose of the other Party complying with any SEC or legal regulations. The terms and conditions of this Agreement are considered Confidential Information. 15. LIMITATION OF LIABILITY . EXCEPT FOR BROCADE’S INDEMNITY OBLIGATIONS UNDER SECTION 11.1, AND EITHER PARTIES OBLIGATION UNDER SECTION 14 CONFIDENTIALITY OF INFORMATION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) DUE TO FAILURE TO PERFORM ITS OBLIGATIONS IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR BROCADE’S INDEMNITY OBLIGATIONS UNDER SECTION 11.1, AND EITHER PARTIES OBLIGATION UNDER SECTION 14 CONFIDENTIALITY OF INFORMATION, THE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, THE SALE OF EQUIPMENT, THE LICENSE OF SOFTWARE, THE PROVISION OF SERVICES AND THE USE, PERFORMANCE, RECEIPT OR DISPOSITION OF SUCH EQUIPMENT, EMC/Brocade Confidential
OEM Purchase Agreement

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SOFTWARE OR SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED [**] 16. GENERAL PROVISIONS . 16.1 Governing Law. This Agreement shall in all respects be governed by and construed in accordance with the laws of the State of New York of the United State