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EXHIBIT 10.77
[IBM LOGO]
3039 Cornwallis Road
RTP, NC 27709
October 6, 2004
Mr. Michael Harrison
Brocade Communications Systems, Inc.
1745 Technology Drive
San Jose, CA 95110
Subject: Amendment 18 to SOW#1 of the
IBM/Brocade Goods Agreement ROC-P-68
This letter (the "Amendment") serves as
Amendment Number 18 to SOW#1, including
all amendments thereto ("SOW#1") of the
Goods Agreement ROC-P-68 (the
"Agreement"), which the parties hereto do
mutually agree to amend as follows:
1. Section 2.10 (Notice
of Product Withdrawal) is deleted in its entirety and
replaced
with the following:
Supplier will provide Buyer with [**]
written notice of its intent to
withdraw any Product ("End of Life" or
"EOL") prior to the last date of
manufacture of a Product. Buyer shall
provide to Supplier [**]for Products and
FRUs [**]from the receipt of Supplier's
notice of End of Life. Buyer will
provide a [**]in each [**]during the
[**]period, as requested by Supplier. Buyer
shall provide to Supplier a non-cancelable
last-time buy WA for forecasted
Products no later than [**]prior to the End
of Life date (last date of
manufacture or sales/distribution date).
Such Product purchases must be
scheduled to ship no later than the End of
Life date. For delivery requests
outside of the Notice Period or order
requests after Buyer's last-time buy
purchase has been placed, Supplier will
review on a case-by-case basis Buyer's
request(s).
2. Section 9.4 entitled
"TECHNICAL SUPPORT" is deleted in its entirety and
replaced with the following:
9.4 TECHNICAL SUPPORT
Technical Support services include [**] for
Product, documentation and
Maintenance and Minor Releases arising out
of technical support
responsibilities, and all such releases
created or made available by Supplier.
9.4.1 LEVEL 1.
Supplier will assist Buyer as [**], in
performing the following Level 1 support
responsibilities:
- create the
PMR;
- obtain from
Customer a description of the Problem;
- search for any
known resolution(s) relevant to the Problem;
- if a resolution
to the Problem is known, specify such resolution to
Customer;
- pass the PMR to
Level 2, and [**] Level 1 actions.
9.4.2 LEVEL 2.
Supplier will assist Buyer, as [**] in
performing the following Level 2 support
responsibilities:
- receive the PMR
from Level 1;
- analyze Problem
symptoms and gather additional data from Customer as
required;
- recreate Problem
on the Developer Test System;
- determine if
Problem is due to improper installation of the Product by
Customer;
- determine if
Problem is due to operationally related hardware or software
at the
Customer location;
- attempt a bypass
or circumvention for high impact Problems (i.e., Severity
1 and 2);
- [**] Level 2
actions.
9.4.3 LEVEL 3.
Supplier will provide Level 3 support
during normal Business Hours, and will
make commercially reasonable efforts to
have Level 3 support [**];
- receive the PMR
number and supporting documentation and materials from
Level
2;
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[**] Certain information on this page has
been omitted and filed separately with
the Securities and Exchange Commission.
Confidential treatment has been
requested with respect to the omitted
portions.
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- analyze Problem
symptoms and diagnose Problem;
- notify Level 2
if additional information, materials or documentation are
required;
- attempt to
recreate Problem on the [**];
- assist Level 2
in developing a bypass or circumvention for high impact
Problem
(i.e., Severity 1 and 2);
- deliver
corrections to the Product and/or Product code to Buyer within
the
applicable
Correction Times to fix Problems identified by Buyer;
- confirm
resolution of Problem with Customer, and document Level 3
actions
through
regular communication; and
- answer Backline
Support questions from Buyer [**]concerning the operation
and use of
Products.
9.4.4 LEVEL 4.
Supplier will provide Level 4 Support to
Buyer as the highest level of
escalation support available at [**]for
Problems that result from Supplier root
cause. Level 4 support shall be available
as required according to the severity
of the Problem, and at Buyer's and
Supplier's agreed upon discretion. If
mutually agreed, Supplier will provide
off-shift Level 4 support if Buyer
indicates such support is required.
The Level 4 Support escalation process is
required for complex Problems and will
provide engineering development assistance
from Supplier. Level 4 Support
includes but is not limited to the Level 3
activities defined in Section 9.4.3
and the following reengineering
activities:
-
analyzing and reproducing, as necessary, the reported defect to
understand root cause
-
developing a fix or workaround for the reported defect
-
setting up the test bed of appropriate Supplier hardware and
software versions to test the defect fix
-
testing that the defect fix works with the other current
Supplier
products/release levels that may be running at the affected
customer
site(s)
-
continually retesting that the defect fix still works with each
new
version of other Supplier products/release levels that may be
getting introduced at the affected customer site(s)
Supplier root cause is defined as Problems
resulting from defects in materials
and workmanship and/or errors in conforming
to Product Specifications according
to Section 1.1 "Specifications" covering
hardware, firmware, and software at
time of Product shipment or subsequent
releases as mutually agreed to by both
parties according to Section 6.0
"Engineering Changes". Root cause will be
demonstrated by test and problem
determination analysis.
If Buyer requires Level 4 Support for
Problems that are demonstrated by Supplier
through root cause analysis not to result
from Supplier root cause, Supplier
will provide technical support to Buyer at
Supplier's then current at Time &
Materials rates, [**], and as mutually
agreed to by the parties.
Brocade shall notify IBM of a planned EOL
announcement for any Brocade Product
or Software [**]before the published date
or the date on which the [**]is
planned to be [**]. Any consent by IBM
shall not relieve Brocade of any
obligations under this Agreement, including
breach thereof [**].
9.4.5 OTHER TECHNICAL SUPPORT
RESPONSIBILITIES.
Supplier will provide to Buyer the name and
phone numbers of Supplier Personnel
to contact for all technical support
matters related to the Product. Supplier
will provide [**]by Buyer to enable Buyer
to perform technical support functions
for the Product and will keep Buyer
informed of any known Problems and their
associated solutions. Supplier shall
[**]directly in the event IBM [**]Supplier
for Product support services. No other
support shall be provided unless [**]for
these Products.
9.4.6 TECHNICAL SUPPORT TRAINING.
Supplier shall make available to Buyer
technical training for support of end
user implementation of the Product. Buyer
shall not use any training materials
in a manner [**]from the use of these
materials to IBM. Technical training
requested by Buyer will be made available
by Supplier to Buyer as mutually
agreed upon. Buyer acknowledges that the
materials distributed by the Supplier
during the technical training are protected
by copyright, and that Buyer shall
have no rights to reproduce such materials
without the prior written consent of
Supplier, such consent shall not be
unreasonably withheld.
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[**] Certain information on this page has
been omitted and filed separately with
the Securities and Exchange Commission.
Confidential treatment has been
requested with respect to the omitted
portions.
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9.4.7 SEVERITY.
Upon Buyer sending an incident report to
Supplier, Buyer shall assign the
incident report a severity level in
accordance with the severity level assigned
to each defect or Problem in accordance
with the table below. Due to varying
complexity of Problems, the target defect
resolution times listed in this
section are goals, and not firm
deadlines.
<TABLE>
<CAPTION>
DEFECT
SEVERITY
SERVICE OBJECTIVE
LEVEL
DEFINITION
RESPONSE TIME
TARGET DEFECT RESOLUTION TIME
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SEVERITY 1 Product or system is not
operational Supplier
provide Buyer with
Supplier will ensure resources will be
and/or all data inaccessible or [**]
Response to its initial request applied [**] with a
goal of providing a
lost. Data flow may be
stopped or
after receiving notification of
solution or acceptable work-around within
errors occur that significantly
Problem from Buyer, such Response
[**]. Supplier will
provide a [**] plan
impact Customer's operation. These time not to exceed [**].
For the
within [**] from the date of Problem
issues will be regarded as having a purpose of this Agreement a
"Response" intake.
Critical Situations
may require
critical impact to the end user's is defined as a
telephone call from the Customer,
Supplier, and Buyer be at
data. Supplier support personnel Supplier
acknowledging that an
their respective work locations or
will require continuous availability incident report has been received
and available
[**]
of Buyer contact until
resolution. that
an appropriate technical resource
has been assigned and is
available to work with
IBM product field
engineering support.
SEVERITY 2 Product or system is
Provide Buyer with a Response
Supplier resources will be applied
operational, but has
to its initial request within
continuously, during Supplier's normal
severely restricted
[**], and during normal
Business Hours, until [**]. Supplier will
functionality and/or
Business Hours.
provide a work-around, fix or patch or
degradation that end-user
resolve the defect in less than [**] from
regards as is impacting his
the date of Problem intake. If
