{"id":42625,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/oem-purchase-and-development-agreement-3com-corp-and-copper.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"oem-purchase-and-development-agreement-3com-corp-and-copper","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/oem-purchase-and-development-agreement-3com-corp-and-copper.html","title":{"rendered":"OEM Purchase and Development Agreement &#8211; 3Com Corp. and Copper Mountain Networks Inc."},"content":{"rendered":"<pre>\n                    OEM PURCHASE AND DEVELOPMENT AGREEMENT\n                                    BETWEEN\n\n                               3COM CORPORATION\n\n                                      AND\n\n                        COPPER MOUNTAIN NETWORKS, INC.\n\n\n          THIS OEM PURCHASE AND DEVELOPMENT AGREEMENT (\"Agreement\") is entered\ninto effective as of November 24, 1998 (\"Effective Date\") between 3COM\nCORPORATION (\"3Com\"), a Delaware corporation located at 5400 Bayfront Plaza,\nSanta Clara, CA 95052-8145, and COPPER MOUNTAIN NETWORKS, INC. (\"Seller\"), a\nCalifornia corporation located at 2470 Embarcadero Way, Palo Alto, CA 94303\n\n                                   RECITALS\n\n          WHEREAS, Seller has developed certain proprietary symmetric digital\nsubscriber line (\"SDSL\") technology and products and ISDN digital subscriber\nline (\"ISDL\") technology and products;\n\n          WHEREAS, [***]\n\n          WHEREAS, [***]\n\n          WHEREAS, [***]\n\n          WHEREAS, the parties desire to engage in certain joint marketing\nefforts to achieve commercial success for the Device; and\n\n          WHEREAS, 3Com also desires to purchase and resell on a value-added,\nprivate-label basis, Seller's Copper Rocket\/TM\/ Model 201 SDSL and IDSL customer\npremises equipment product(s) (the \"CR201\").\n\n          NOW, THEREFORE, in consideration of the mutual promises contained\nherein the parties agree as follows:\n\n                                       1.\n\nConfidential treatment has been requested for portions of this exhibit. The copy\nfiled herewith omits the information subject to the confidentiality request. \nOmissions are designated as [***]. A complete version of this exhibit has been \nfiled separately with the Securities and Exchange Commission.\n\n\n \n                             TERMS AND CONDITIONS\n\n1.   DEFINITIONS.\n\n     1.1     \"3COM BRANDED CR201\" means CR201 units that have been rebranded by\nor for 3Com.\n\n     1.2     \"3COM KNOW-HOW\" means the proprietary techniques, inventions,\npractices, methods, knowledge, designs, skill and experience relating to\ncustomer premises equipment (\"CPE\") and networking systems which 3Com discloses\nto Seller under this Agreement.\n\n     1.3     \"3COM PATENTS\" means patents related to the subject matter of this\nAgreement issued as of the Effective Date and the patents to issue after the\nEffective Date on patent applications entitled to a filing date on or before the\nEffective Date related to the subject matter of this Agreement, including\nwithout limitation all foreign counterparts, all substitutions, extensions,\nreissues, renewals, divisions, continuations and continuations in part relating\nto such patents and their foreign counterparts, and which are owned or\ncontrolled by 3Com (where \"controlled\" means licensed by 3Com with a royalty-\nfree right to grant sublicenses).\n\n     1.4     \"3COM TECHNOLOGY\" means (i) the inventions, designs, discoveries\nand processes claimed in the 3Com Patents and (ii) the 3Com Know-How.\n\n     1.5     \"DEVICE SOFTWARE\" means certain Seller DSL software, including but\nnot limited to Seller's pre-activation signaling software and internal control\nprotocol software, configured to run in the Device in a polled (i.e., non-\ninterrupt driven) mode on a Motorola 68LC302 processor.\n\n     1.6     \"IMPROVEMENTS\" means any improvements, discoveries, developments,\nmodifications or derivative works, whether or not patentable.\n\n     1.7     \"INTELLECTUAL PROPERTY RIGHTS\" means all current and future trade\nsecrets, copyrights, patents and other patent rights, trademark rights, service\nmark rights, mask work rights and any and all other intellectual property or\nproprietary rights now known or hereafter recognized in any jurisdiction.\n\n     1.8     \"PRODUCTS\" means the CR201 or the 3Com Branded CR201, as\napplicable, including such updates or enhancements to the CR201 or the 3Com\nBranded CR201 that the parties may agree upon and implement pursuant to Section\n14.\n\n     1.9     \"PRODUCT SOFTWARE\" means certain Seller DSL firmware that is\nembedded in the Products.\n\n     1.10    \"SELLER KNOW-HOW\" means the proprietary techniques, inventions,\npractices, methods, knowledge, designs, skill and experience relating to the\nmodification of CPE to comply with the DSL Specifications or the operation of\nSeller's proprietary DSL networking systems which Seller discloses to 3Com under\nthis Agreement.\n\n     1.11    \"SELLER PATENTS\" means patents issued as of the Effective Date\nrelated to the subject matter of this Agreement and the patents to issue after\nthe Effective Date on patent\n\n                                       2.\n\n \napplications entitled to a filing date on or before the Effective Date related\nto the subject matter of this Agreement, including without limitation all\nforeign counterparts, all substitutions, extensions, reissues, renewals,\ndivisions, continuations and continuations in part relating to such patents and\ntheir foreign counterparts, and which are owned or controlled by Seller (where\n\"controlled\" means licensed by Seller with a royalty-free right to grant\nsublicenses).\n\n     1.12    \"SELLER SOFTWARE\" means the Device Software and the Product\nSoftware.\n\n     1.13    \"SELLER TECHNOLOGY\" means (i) the inventions, designs, discoveries\nand processes claimed in the Seller Patents and (ii) the Seller Know-How.\n\n     1.14    \"SPECIFICATIONS\" means specifications for the Products to be agreed\nupon by the parties and to be attached hereto as Exhibit B (Product\nSpecifications).\n\n     1.15    \"TESTING CRITERIA\" means the test criteria and procedures mutually\nagreed upon by the parties to ensure the Device's compatibility with the DSL\nSpecifications. The Testing Criteria will be set forth in Schedule A to Exhibit\nD attached hereto.\n\n2.   [***]\n\n3.   PURCHASE OF PRODUCTS; SUPPORT SERVICES.\n\n     3.1     PURCHASE OF PRODUCTS. Seller agrees to sell the Products to 3Com\nand to accept purchase orders for the Products from 3Com under the terms and\nconditions of this Agreement. It is expressly understood that 3Com has no\nobligation to purchase any, or any minimum number of, Products hereunder.\nFurther, nothing in this Agreement shall prevent 3Com from manufacturing or\nprocuring from other sources like or comparable products.\n\n     3.2     DOCUMENTATION LICENSE. Subject to the terms and conditions of this\nAgreement, Seller hereby grants 3Com, a nonexclusive, nontransferable,\nworldwide, fully-paid and royalty-free license to use, reproduce, modify, create\nderivative works based on, support, demonstrate and distribute through single or\nmultiple tiers of distribution all end user documentation, including all\nsubsequent updates or enhancements thereto or replacements therefor, delivered\nas part of or together with the Products or otherwise provided under this\nAgreement. Any modifications or derivative works are subject to Seller's\ntechnical approval prior to demonstration or distribution.\n\n     3.3     SUPPORT SERVICES. Training and support services for the Products\nshall be provided as set forth in Exhibit C attached hereto.\n\n     3.4     TRADEMARK RIGHTS. 3Com requests and Seller agrees to provide\ncertain markings and identification, which includes the trademark(s) and\/or\ntrade name of 3Com, on the Products ordered and delivered to 3Com. 3Com\nacknowledges that initial Product production runs may not have 3Com branding,\nbut the parties anticipate that the Product units sold to 3Com will display 3Com\ntrademarks by approximately January 2, 1999. Such markings and identification\n\n                                       3.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \nshall be strictly in accordance with the requirements of 3Com as set forth in\n3Com's Trademark Guidelines, as provided to Seller and as may be updated from\ntime to time by 3Com. Seller is not authorized to use the trademark(s) and trade\nnames of 3Com on any products, other than Products ordered by and delivered to\n3Com, or for any other purpose. Seller is hereby granted a limited trademark\nlicense with respect to the 3Com trademarks set out in the above-mentioned\nmarkings and identification, solely for the above-mentioned use. All other use\nis prohibited. This license shall terminate on the earlier of termination of\nthis Agreement or failure of Seller to maintain the quality requirements set out\nin this Agreement. Seller shall obtain no rights to or interest of any kind in\nany 3Com trademarks or trade names other than the limited right to use set out\nabove.\n\n     3.5     INDEMNIFICATION. 3Com shall indemnify and hold Seller harmless from\nand against any and all damages, costs and expenses (including without\nlimitation reasonable attorneys' and expert witness fees) incurred by Seller in\nconnection with any action, suit, proceeding, demand, assessment or judgment\narising out of or related to any claims by third parties based on any\ninfringement by the 3Com trademarks, logos or trade names of any trademark, logo\nor trade name of any other person or entity; provided that (i) Seller promptly\nnotifies 3Com of such action, claim or proceeding; (ii) 3Com shall have the sole\nright to compromise, settle or defend any such action, claim or proceeding;\nprovided, however, that 3Com shall not compromise or settle any such action,\nclaim, or proceeding in a manner that does not unconditionally release Seller\nwithout Seller's prior written consent; and (iii) Seller provides 3Com\nreasonable assistance at 3Com's request and expense in the defense of such\naction, claim or proceeding.\n\n4.   ORDER FORECAST.\n\n     3Com shall provide Seller with a nine (9) month non-binding, forward-\nlooking rolling forecast and update such forecast on a monthly basis. Seller\nshall use such forecast for internal material planning requirements only. Such\nforecast does not represent any commitment by 3Com to purchase Products.\nFurther, Seller shall view all forecasts as Confidential Information in\naccordance with Section 21 below.\n\n5.   PURCHASE ORDERS.\n\n     5.1     LEADTIME. Seller agrees to supply Products to 3Com within fifty-six\n(56) calendar days leadtime. Seller will make good faith, commercially\nreasonable efforts to reduce this leadtime. Seller will notify 3Com immediately\nupon any changes in leadtime.\n\n     5.2     PURCHASE ORDERS. Purchases shall be initiated by 3Com's written or\nelectronically dispatched purchase orders referencing the quantity, the Product,\napplicable price, shipping instructions and requested in house delivery dates.\nAll purchase orders for Products placed by 3Com hereunder shall be governed by\nthe terms and conditions of this Agreement. In the event of a conflict between\nthe provisions of this Agreement and the terms and conditions of 3Com's purchase\norder or Seller's acknowledgment or other written communications, the provisions\nof this Agreement shall prevail and any such conflicting terms or conditions are\nhereby rejected.\n\n                                       4.\n\n \n     5.3     ISSUANCE AND ACCEPTANCE. Seller shall notify 3Com of acceptance of\npurchase order by telephone or facsimile (and promptly confirm in writing)\nwithin five (5) business days after receipt of 3Com's purchase order. Failure of\nSeller to confirm or respond to 3Com's purchase order within five (5) business\ndays shall constitute acceptance. The parties anticipate approximately a six (6)\nto eight (8) week delivery cycle from purchase order to fulfillment. All orders\nare subject to acceptance in writing by Seller and shall not be binding until\nacceptance. If orders for the Product units exceed Seller's inventory, Seller\nshall allocate available inventory on a basis Seller, in its reasonable\ndiscretion, deems equitable. In such event, Seller will use good faith efforts\nto allocate supply of Products to 3Com on a pro-rata basis, taking into account\n3Com's current and historical purchase history for the Product compared against\nSeller's total current and historical sales of Products. If Seller cannot\nallocate to 3Com such pro-rata share in such circumstances, the parties shall\ndiscuss in good faith a mutually acceptable course of action. Seller shall use\nreasonable efforts to fill orders promptly, but shall not be liable for any\ndamage to 3Com or any third party for failure to fill any orders, or for any\ndelay in delivery or error in filling any orders. Notwithstanding any prior\nacceptance by Seller of a purchase order for Product units, Seller shall not be\nobligated to ship Product units if 3Com is in breach of this Agreement at the\ntime of scheduled shipment.\n\n     5.4     CHANGE ORDERS. Change orders shall be provided by written or\nelectronically dispatched notice from 3Com. Seller shall notify 3Com of\nacceptance of change order by telephone or facsimile (and promptly confirm in\nwriting) within two (2) business days after receipt of 3Com's change order or\nchange order request. Failure of Seller to confirm or respond to 3Com's change\norder within two (2) business days shall constitute acceptance.\n\n             5.4.1     CANCELLATION. 3Com may cancel without liability any\npurchase order upon written notice to Seller within forty-five (45) days from\nthe date such purchase order was accepted by Seller. Notwithstanding the\nforegoing, if Seller incurs substantial liability (as determined by Seller in\nits reasonable, good faith judgment) as a result of such cancellation or a\nseries of cancellations because of the materials and work in process costs\nincurred by Seller to meet such purchase order(s), and Seller and 3Com cannot\nreasonably use such materials and work in process within a reasonable time\nframe, the parties agree to discuss in good faith a mutually acceptable plan to\nlimit such liability in future and to compensate Seller for the materials and\nwork in process costs it has incurred as a result of such cancellation or\ncancellations.\n\n             5.4.2     RESCHEDULING. 3Com shall be entitled to reschedule\ndelivery of Products or quantities of Product scheduled for a particular\ndelivery at any time for a particular purchase order; provided, however, that\n3Com cannot reschedule a delivery of Products beyond ninety (90) days from the\noriginal delivery date. Seller shall accommodate a request to expedite the ship\ndate, if reasonably able to do so.\n\n6.   DELIVERY TERMS.\n\n     6.1     DELIVERY POINT. All shipments shall be F.C.A. origin (Seller's U.S.\nshipping dock). Title and risk of loss shall pass to 3Com upon Seller's tender\nof delivery to the common carrier or 3Com's designee.\n\n                                       5.\n\n \n     6.2     SHIPPING. All shipments are freight collect. Seller may ship\npartial orders provided Seller notifies 3Com and 3Com agrees prior to shipment.\n3Com's purchase order shall specify the carrier or means of transportation or\nrouting, and Seller will comply with 3Com's instructions. If 3Com fails to\nprovide shipping instructions, Seller shall select the best available carrier,\non a commercially reasonable basis.\n\n     6.3     PACKING INSTRUCTIONS. All Products shall be packaged and prepared\nfor shipment in a manner which (i) follows 3Com's packaging and routing\nguidelines, a copy of which will be provided to Seller, (ii) follows good\ncommercial practice, (iii) is acceptable to common carriers for shipment and\n(iv) is adequate to ensure safe arrival. Seller shall mark the outside of each\nshrink wrapped pallet with the applicable 3Com part numbers and any necessary\nlifting and handling information. Each shipment shall be accompanied by a\npacking slip which will include 3Com's part numbers, purchase order number,\nSeller's part number and the quantity shipped.\n\n     6.4     RESPONSIBILITY FOR EXPORT LICENSING. Subject to all the rules and\nregulations stated in Section 17, Seller agrees, upon 3Com's request, to deliver\nProducts to 3Com's freight forwarder for export from the country of origin.\nSubject to the terms of this Agreement, 3Com will be responsible for obtaining\nthe appropriate licenses or permits necessary to export Products from the\ncountry of origin. Seller shall furnish 3Com or 3Com's designee with the\ninformation necessary for 3Com to timely obtain all required export and import\ndocumentation.\n\n     6.5     DELIVERY SCHEDULE. Delivery shall be pursuant to the schedule set\nforth in 3Com's purchase order or as otherwise agreed upon by the parties.\nSeller shall immediately notify 3Com in writing of any anticipated delay in\nmeeting the delivery schedule, stating the reasons for the delay. If Seller's\ndelivery fails to meet the committed delivery schedule, then Seller, upon 3Com's\nrequest, shall expedite the routing at Seller's expense, however, if Seller's\ndelivery fails to meet the schedule by in excess of twenty (20) days, then 3Com,\nat its sole option and without penalty or any additional expense, may (i)\nrequire Seller to expedite the routing by the fastest available commercial\ncarrier; (ii) reschedule the delivery; or (iii) cancel the delivery in whole or\nin part.\n\n     6.6     EARLY DELIVERY. Seller shall not deliver any Products prior to the\nscheduled delivery date, without 3Com's written consent, and 3Com may return\nearly or excess shipments to Seller at Seller's sole risk and expense.\n\n     6.7     IN-STOCK MINIMUM. Seller agrees to use commercially reasonable\nefforts to carry in \"safety stock\" a minimum of two weeks supply (as set forth\non the latest monthly forecast) of completed units of each of the Products to\naccommodate any unforeseen or expedited demand on the part of 3Com.\n\n     6.8     COUNTRY OF MANUFACTURER. Seller represents and warrants that the\nProduct is manufactured in the United States. Seller shall promptly advise 3Com\nat least ninety (90) days prior to a change in or addition to any such\nmanufacturing locations.\n\n     6.9     COMMODITY CLASSIFICATION. Seller shall provide 3Com with a copy of\nthe Commodity Classification for the Products or, if this is not available,\nSeller shall provide 3Com with the ECCN that was used by Seller for self-\ncertification. A copy of the Commodity \n\n                                       6.\n\n \nClassification is required for any Product containing security or encryption\ntechnology. In addition, Seller shall advise 3Com as to the License Exception,\nif applicable, pursuant to which the Product may be exported.\n\n7.   PRICING; TAXES.\n\n     7.1     PRICES. The prices charged by Seller for the Products shall be\nthose set forth as Exhibit A, less the applicable discount, if any, stated in\nExhibit A. All prices are F.C.A. origin (Seller's shipping dock). Prices are\nexclusive of costs of transportation, insurance, taxes, customs, duties,\nlanding, storage and handling fees, and\/or documents or certificates required\nfor exportation or importation, which will be separately itemized and billed to\n3Com in accordance with the billing and payment provisions of this Agreement.\n\n     7.2     QUARTERLY PRICE REVIEWS. Seller and 3Com agree to meet each 3Com\nfiscal quarter (3Com's fiscal year is June through May) and review prices of\neach Product. [***]\n\n     7.3     [***]\n\n     7.4     TAXES AND DUTIES. The prices for the Products are exclusive of all\ntaxes. 3Com shall pay all import duties, customs fees, sales (unless an\nexemption certificate is furnished by 3Com to Seller), use, and value added\ntaxes (except for taxes imposed on Seller's net income) with respect to any\nproducts sold or licensed and any services rendered to 3Com in respect of this\nAgreement. Such taxes, when applicable, will appear as separate items on\nSeller's invoice. If applicable law requires 3Com to withhold any taxes levied\nby the United States on payments to be made pursuant to this Agreement\n(\"Withholding Tax\"), 3Com shall be entitled to deduct such Withholding Tax from\nthe payments due Seller hereunder. If Seller is eligible to take advantage of\nthe reduced Withholding Tax provided for by an applicable United States tax\ntreaty then in force, Seller shall furnish 3Com with all appropriate forms,\ndocuments and paperwork required under the treaty to obtain such reduced\nWithholding Tax, including a completed US Internal Revenue Service (IRS) Form\n1001, Certificate of Reduced Withholding, otherwise 3Com will apply the non-\ntreaty withholding tax rate on applicable payments.\n\n     7.5     [***]\n\n                                       7.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n     7.6     [***]\n\n     7.7     LATE PAYMENT. Any payment not made within fifteen (15) days after\nit is due shall bear interest at a rate equal to one and one half percent (1\n1\/2%) per month or the highest rate permitted by applicable law, whichever is\nless, on the unpaid amounts from time to time outstanding from the date on which\nportions of such amounts became due and owing until payment thereof in full.\n\n     7.8     NO SET-OFF. Except as set forth in Section 7.6 above, no part of\nany amount payable to Seller hereunder may be reduced due to any counterclaim,\nset-off, adjustment or other right which 3Com may have against Seller.\n\n     7.9     [***]\n\n8.   AUDIT.\n\n     8.1     RECORDS. 3Com shall keep complete and accurate records pertaining\nto the sale of the Devices. Such records will be maintained for a three (3) year\nperiod following the year in which any such payments were made hereunder.\n\n     8.2     AUDIT REQUEST. Seller will have the right to engage, at its own\nexpense, an independent auditor reasonably acceptable to 3Com, to examine 3Com's\nrecords from time to time as may be necessary, but no more than once every six\n(6) calendar months, to determine, with respect to any calendar year, the\ncorrectness of any report or payment made under this Agreement. Such audit shall\nbe conducted upon at least five (5) days advance written notice and shall be\nconducted during 3Com's normal business hours. If any such audit reveals an\nunderpayment of more than five percent (5%) of the correct amount of royalties\ndue hereunder, such audit will be at the expense of 3Com. If any audit conducted\non behalf of Seller shall show that 3Com underpaid the royalties due to Seller\nunder the licenses herein as to the period subject to the audit, then 3Com shall\nimmediately pay to Seller any such deficiency with interest thereon at a rate\nequal to the lower of one and a half percent per month or the highest rate\nallowed by law from the date due until paid or at such lower rate as shall be\nthe maximum rate permitted by law.\n\n9.   INVOICING AND PAYMENT.\n\n     Subject to acceptance of Products as provided in Section 10, invoices shall\nbe due and payable forty-five (45) days after the date of actual receipt of the\nProducts or Seller's invoice, whichever is later.\n\n10.  ACCEPTANCE; QUALITY ASSURANCE.\n\n                                       8.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n     10.1    ACCEPTANCE. The Product and any change to the Product pursuant to\nSection 14 are subject to an initial acceptance test procedure by 3Com at 3Com's\nfacility before final acceptance as set forth in this Section 10.1. If the\nProduct delivered hereunder fails to conform to the Specifications or with the\nparties' agreed-upon testing and acceptance criteria, 3Com shall notify Seller\nof such failure, the parties will promptly discuss means to resolve any such\nfailure, and Seller shall have up to thirty (30) days (or such longer period as\nthe parties may agree) to deliver to 3Com conforming Products. If Seller fails\nto deliver conforming Products within such thirty (30) day period, absent\nseparate agreement, 3Com shall have the right, without liability, to either\ncancel purchase orders for that Product and any other Products, the acceptance\nof which is impractical in 3Com's reasonable opinion as a result of Seller's\nfailure to meet the Specifications, or require expedited shipping of the\nconforming Products at Seller's sole cost. After initial acceptance of a Product\nor a modified Product, further deliveries of such Product shall be deemed\naccepted upon delivery.\n\n     10.2    3COM TESTING. Seller acknowledges that 3Com will conduct period\ntesting of Product deliveries, likely by testing sample units within a lot\ndelivery. Should such sample testing reveal a likelihood of more than a minimal\nnumber of failures of the Products delivered to comply with the limited warranty\nset forth in Section 18.1, 3Com may return the entire Product lot delivered to\n3Com pursuant to the RMA procedures set forth in this Agreement for further\ntesting by Seller.\n\n     10.3    INSPECTION RIGHTS. 3Com shall have the right to perform vendor\nqualifications and\/or on-site source inspections at Seller's manufacturing\nfacilities and Seller shall reasonably cooperate with 3Com in that regard. If an\ninspection or test is made on Seller's premises, Seller shall provide 3Com's\ninspectors with reasonable facilities and assistance at no additional charge.\n3Com may conduct such inspections no more frequently than once a calendar\nquarter unless an epidemic failure as described in Section 10.5 has occurred.\n3Com must provide advance written notice of a desire to conduct an inspection of\nat least five (5) days prior to the beginning of such inspection. Such\ninspection shall be conducted only during normal business hours and in\ncompliance with all Seller's safety and security requirements.\n\n     10.4    ISO 9002 COMPLIANT SUPPLIER. Seller represents that Seller will\nobtain ISO 9002 compliance within eighteen (18) months after the Effective Date.\nShould Seller lose the ISO 9002 registration thereafter, Seller will notify 3Com\nimmediately. Seller will then use commercially reasonable measures to obtain\nreregistration within sixty (60) days. The parties acknowledge that Seller may\nsubcontract manufacture of Products to a subcontractor and that such\nsubcontractor is likely to be ISO 9002 registered.\n\n     10.5    EPIDEMIC FAILURE. \"Epidemic Failure\" shall mean (i) a failure of\nmore than five percent (5%) of three (3) consecutive deliveries to conform to\nthe warranty in Section 18.1 or a failure of four (4) out of six (6) deliveries\nto conform to the warranty in Section 18.1, or (ii) a failure of more than three\nand a half percent (3.5%) of total deployed 3Com Branded CR201s in any six (6)\nmonth rolling period. In the case of an Epidemic Failure, Seller's obligations\nshall be, within ten (10) business days, to propose an action plan to fix the\nfailure of any affected Products and to implement this action plan upon 3Com's\nacceptance thereof. If the action plan is not acceptable to 3Com in its\nreasonable, good faith judgment, 3Com can require Seller to repair or replace,\nat Seller's option, the affected Products. The repair or replacement shall be\ndone at\n\n                                       9.\n\n \nmutually agreed-upon location(s); provided, however, that costs of repair or\nreplacement together with the shipping, transportation and other costs of\ngathering and redistributing the Products shall be borne by Seller. In addition\nto bearing the costs associated therewith, if requested by 3Com, Seller shall\nsupport and provide at Seller's expense a sufficient number of Products to\npermit the field exchange or \"hot swap\" of Products at customer sites. The\nparties agree to make all reasonable efforts to complete the repair or\nreplacement of all of the affected Products within twenty (20) business days\nafter written notice of Epidemic Failure by 3Com to Seller. Seller also agrees\nthat 3Com will be supported with accelerated shipments of replacement Product to\ncover 3Com's supply requirements.\n\n11.  COMPLIANCE WITH SPECIFICATIONS.\n\n     All Products delivered hereunder shall comply in all material respects with\nthe Specifications to be agreed upon by the parties and attached hereto as\nExhibit B.\n\n12.  REGULATORY AGENCY COMPLIANCE.\n\n     All Products delivered hereunder, shall comply in all material respects\nwith the regulatory agency requirements to be agreed upon by the parties and\nlisted in Exhibit B, Product Specifications (e.g., Product Safety,\nElectromagnetic Compatibility and Telecommunications). Seller, at its sole\nexpense, will obtain all required agency certifications and approvals for the\nProducts. Seller will further ensure that the Product remain compliant with\nthose regulatory agency requirements. 3Com agrees to work with Seller in\nobtaining these certifications and approvals, and will supply 3Com Model numbers\nto Seller whenever appropriate. Prior to shipment of production units, Seller\nwill submit to 3Com sufficient proof of the certifications and approvals.\n\n13.  COMPLIANCE WITH ENVIRONMENTAL LAWS.\n\n     Seller represents and warrants to 3Com that upon and after the Effective\nDate of this Agreement, Seller will not provide any Product to 3Com which has\ncome into physical contact with: (i) a Class I substance, as defined in Section\n611 of the Federal Clean Air Act (the \"Act\"), during any portion of the\nmanufacturing process; or (ii) a Class II substance, as defined in the Act and\nTitle 40, Code of Federal Regulations, Section 82 (the \"Code\"), during any\nportion of the manufacturing process, where there has been a determination by\nthe U.S. Environmental Protection Agency that there is a substitute product or\nmanufacturing process for such Product which does not rely on the use of such\nClass II substance, that reduces overall risk to human health and the\nenvironment, and that is currently or potentially available, in accordance with\nthe Code.\n\n     Seller further represents and warrants that 3Com shall not be subjected to\nany warning or labeling requirements regarding a Class I substance or a Class II\nsubstance pursuant to the Act or any regulation promulgated under the Act, as a\nresult of any Product provided by Seller to 3Com under this Agreement.\n\n     Without limitation to the foregoing, Seller represents and warrants that in\nall respects, the manufacture and sale of the Products comply and will\nthroughout the term of this Agreement comply with all applicable environmental\nlaws, regulations and other regulatory requirements.\n\n                                      10.\n\n \n     If Seller discovers a breach of any of the representations and warranties\nin this Section 12, it shall immediately notify 3Com of such breach in writing,\nexplaining the circumstances constituting the breach and identifying the\nProduct(s) involved. Further, Seller shall defend, indemnify and hold harmless\n3Com and its officers, directors, employees, agents, representatives, successors\nand assigns from any liabilities, losses, demands, claims or judgments arising\nfrom and third party claims regarding the breach of any of Seller's\nrepresentations set forth in this Section 13; provided that 3Com provides Seller\n(i) prompt written notice of the existence of such claims; (ii) sole control\nover the defense and settlement of any such claim; and (iii) assistance in the\ndefense or settlement of any such claim upon seller's reasonable request and at\nSeller's reasonable expense.\n\n14.  PRODUCT CHANGES.\n\n     14.1    UPDATES AND PRODUCT ENHANCEMENTS. The parties acknowledge that they\nintend that the 3Com Branded CR201 will be kept current with the CR201, and that\nmodifications, enhancements or improvements that Seller makes to the CR201 will\nalso be made available to the 3Com Branded CR201 pursuant to the procedures set\nforth in this Section 14.\n\n     14.2    ENGINEERING CHANGE. In the event that 3Com finds or becomes aware\nof a situation which in its opinion necessitates or would benefit from an\nengineering change in any of the Products, 3Com shall suggest such proposed\nengineering change to Seller and Seller and 3Com agree to work with each other\nin good faith to determine whether such change will be made and if so will work\nwith each other on the implementation of such change. Seller agrees to work with\n3Com in good faith to upgrade or alter the Product to changing market\nrequirements.\n\n     14.3    ENGINEERING CHANGE ORDERS. Should Seller materially change,\nimprove, or add any enhancements or updates to the Products at any time, Seller\nshall provide reasonable prior written notice to 3Com of any such material\nchange, improvement, enhancement or update that affects the form, fit or\nfunction of any Product or related product or any changes to Seller's part\nnumber for the Product prior to its implementation. 3Com shall respond to the\nrequested changes within twenty-one (21) days or the change will be deemed\naccepted. 3Com's response time may be reduced by mutual agreement if the change\nimproves safety or reliability.\n\n     14.4    REJECTION OF CHANGE ORDERS. 3Com shall not unreasonably withhold\nacceptance of a proposed change; it may however reject a proposed change for\ngood cause. If 3Com does reject a proposed change, the parties will discuss in\ngood faith alternatives to such rejection. Upon rejection of any proposed\nchange, 3Com shall be entitled to (i) terminate in whole or in part, any\naffected Product remaining undelivered under accepted Releases or require\ndelivery by Seller of some or all of such unchanged Product and (ii) place a\nlast-time purchase for the unchanged Product for delivery in amounts requested\nby 3Com over a six-month period following such implementation.\n\n     14.5    UNAUTHORIZED CHANGES. If an ECO is implemented without the written\napproval of 3Com, Seller shall be liable for repair and\/or rework of all product\naffected, including to, but not limited to, product in transit, product in\nFGI\/Finished Good Inventory, and any product located with a reseller or at an\nend user location.\n\n                                      11.\n\n \n15.  JOINT MARKETING AND SALES.\n\n     15.1    JOINT MARKETING. Seller and 3Com will jointly announce and promote\nthe Product and Device through joint marketing activities. These activities may\ninclude joint press releases, trade shows, appendices, dissemination of product\nbrochures through each party's channels, and such other activities that the\nparties agree to conduct. The parties will conduct appropriate training to\nensure quality marketing and will meet periodically to update and improve their\njoint marketing efforts.\n\n     15.2    JOINT SALES ACTIVITIES. Where appropriate, the parties will work\ntogether on sales efforts to potential Product and Device customers, regardless\nof which party was the originating party. The parties will conduct appropriate\ntraining to ensure quality sales efforts and will meet periodically to improve\njoint sales efforts.\n\n     15.3    MARKETING COMMITMENTS. The parties agree to undertake the marketing\nactivities described in Exhibit I attached hereto.\n\n16.  LICENSE GRANTS; OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS.\n\n     16.1    DSL SPECIFICATIONS. Subject to the terms and conditions of this\nAgreement, 3Com shall use the DSL Specifications solely for the purposes\nspecified in this Agreement, including without limitation Exhibit D attached\nhereto. 3Com shall not use the DSL Specifications for any purpose not specified\nin this Agreement, including, without limitation, using the DSL Specifications\n(a) to add features to CPE in order to operate with the central office device of\nany third party DSL networking system, or (b) to send Seller's Internal Control\nProtocol messages to the central office device of any third party DSL networking\nsystem. 3Com shall not distribute, disclose or publicly display the DSL\nSpecifications. This Section 16.1 does not prevent 3Com from designing the\nDevice so that the Device also operates with third party DSL networking systems.\n\n     16.2    SELLER LICENSE GRANT. Subject to the terms and conditions of this\nAgreement, Seller grants to 3Com a non-exclusive, non-transferable, royalty-\nbearing license, without the right of sublicense, to make, have made, use,\nimport, offer to sell and sell the Device through one or more tiers of\ndistribution.\n\n     16.3    DEVICE SOFTWARE LICENSE GRANT. Subject to the terms and conditions\nof this Agreement, Seller grants to 3Com a non-exclusive, royalty-free, non-\ntransferable license, without right of sublicense except to Device manufacturers\nfor 3Com and 3Com OEMs, to reproduce the Device Software to incorporate the\nDevice Software into the Device and to distribute the Device Software in a\nmachine-executable form only and only as incorporated in the Device. Should 3Com\ndesire to port the Device Software for use on a different processor, 3Com shall\nnotify Seller and the parties will discuss in good faith the terms upon which\nthe Device Software will be ported. To the extent permissible by applicable law,\n3Com shall not itself, or permit others to, reverse compile, reverse engineer or\notherwise disassemble the Device Software. To the extent permissible by\napplicable law, no rights to copy, prepare derivative works or to publicly\nperform or display any Device Software are granted to 3Com or end users\nhereunder.\n\n                                      12.\n\n \n     16.4    PRODUCT SOFTWARE LICENSE. Subject to the terms and conditions of\nthis Agreement, Seller grants to 3Com during the term of this Agreement a\nnonexclusive, nontransferable, royalty-free license to distribute through 3Com's\nsales channels any Product Software incorporated or embedded in the Products\nsolely as incorporated in firmware format therein, and to permit end users of\nthe Products to use the Product Software solely as incorporated in the Products,\nsubject in each instance to an enforceable end user license with terms and\nconditions no less protective of Seller's proprietary interests in such Product\nSoftware as set forth in this Agreement. To the extent permissible by applicable\nlaw, 3Com shall not itself, or permit others to, reverse compile, reverse\nengineer or otherwise disassemble the Product Software. To the extent\npermissible by applicable law, no rights to copy, prepare derivative works or to\npublicly perform or display any Product Software are granted to 3Com or end\nusers hereunder.\n\n     16.5    LICENSE RESTRICTIONS. In addition to the license restrictions set\nforth above, 3Com shall not use the Seller Technology or the Seller Software to\ndevelop CPE or to add features to CPE in order to allow such CPE (i) to operate\nwith any third party DSLAM (as defined in Exhibit D) or third party networking\nsystem or (ii) to send Seller's Internal Control Protocol messages via any third\nparty DSL networking system. Any rights to or under Seller's Intellectual\nProperty Rights, Seller Technology or Seller Software not expressly granted in\nthis Agreement are expressly reserved. This Section 16.5 does not prevent 3Com\nfrom designing the Device so that the Device also operates with third party DSL\nnetworking systems.\n\n     16.6    3COM LICENSE GRANT. Subject to the terms and conditions of this\nAgreement, 3Com grants to Seller a non-exclusive, non-transferable, royalty-free\nlicense, without the right of sublicense, to assist in the development effort\nregarding the Device as set forth in Exhibit D and to provide the support\ndescribed in Exhibit C. All other rights not expressly granted in this Agreement\nare reserved.\n\n     16.7    INTEROPERABILITY MARKING. Upon successful completion of\ninteroperability testing in accordance with Exhibit D, Seller (a) will provide\nto 3Com an interoperability logo for use in 3Com's marketing materials in\naccordance with Seller's then-current trademark use guidelines, and (b) will\ninclude 3Com's name and the name of the Device on a list of interoperable CPE\nwhich will be provided to Seller's customers and posted on Seller's web site.\n3Com will display the interoperability logo on each Device and Product and the\npackaging of each Device and Product and on all associated printed and marketing\nmaterials, including but not limited to product brochures and on 3Com's world\nwide web site in all web pages that pertain to the Device.\n\n     16.8    INTELLECTUAL PROPERTY MARKINGS. In addition, 3Com will comply with\nSeller's reasonable instructions regarding the marking of the Device and\naccompanying packaging and documentation with a notice reflecting Seller's\nownership of the Seller Technology.\n\n     16.9    TRADEMARKS. Subject to the terms and conditions set forth in the\nAgreement and solely for the purposes hereof, 3Com will have a non-transferable,\nnon-exclusive license, without right of sublicense, to place the Seller\ntrademarks and logos (\"Marks\") on the Devices and in documentation and packaging\nas required in Sections 16.7 and 16.8. Such Marks shall be prominent and the\nplacement and sizing shall be subject to mutual agreement of the parties. In no\n\n                                      13.\n\n \nevent may 3Com alter or remove any Marks unless such removal is approved in\nadvance in writing by Seller. Except for the right to use the Marks as set forth\nin this Section 16.9, nothing contained in this Agreement shall be construed to\ngrant 3Com any right, title or interest in or to the Marks. 3Com acknowledges\nSeller's exclusive ownership of the Marks. 3Com agrees not to take any action\ninconsistent with such ownership and further agrees to take, at Seller's\nreasonable expense, any action which Seller reasonably requests to establish and\npreserve Seller's exclusive rights in and to its Marks. 3Com shall not adopt,\nuse or attempt to register any trademarks or trade names that are confusingly\nsimilar to the Marks or in such a way as to create combination marks with the\nMarks. 3Com will maintain a high quality standard in producing and marketing\nDevices. 3Com shall promptly provide Seller with samples of all materials,\nincluding the Devices, that use the Marks for Seller's quality control purposes.\nIf, in Seller's reasonable discretion 3Com's use of the Marks does not meet\nSeller's then-current trademark usage policy, Seller may, at its option, require\n3Com to revise such material and re-submit it under this Section 16.9 prior to\nshipment, display, or release of further Devices or materials bearing or\ncontaining such Mark.\n\n     16.10   INTELLECTUAL PROPERTY RIGHTS OWNERSHIP. For any joint conception,\ninvention and development of technology, the parties agree that all Intellectual\nProperty Rights conceived, created, made, or first fixed in a tangible medium of\nexpression during the term of this Agreement shall be as follows: (i) Seller's\nIntellectual Property Rights when accomplished by Seller personnel, unless such\ninvention is an Improvement to the 3Com Technology, which Improvement and any\nIntellectual Property Rights therein Seller agrees to assign to 3Com except as\nset forth in subsection (iii) below; (ii) 3Com Intellectual Property Rights when\naccomplished by 3Com personnel pursuant to this Agreement, unless such invention\nis an Improvement to the Seller Technology, the Product or the Seller Software,\nwhich Improvement and any Intellectual Property Rights therein 3Com agrees to\nassign to Seller except as set forth in subsection (iii) below; and (iii) owned\njointly by the parties (if not an Improvement to the 3Com Technology or the\nSeller Technology, the Product or the Seller Software, or if an indivisible\nImprovement to both the 3Com Technology and the Seller Technology), without\nright of accounting, when accomplished jointly by 3Com and Seller personnel\n(\"Joint Intellectual Property\"). Seller and 3Com agree that throughout the term\nof this Agreement they shall cooperate reasonably and in good faith to decide\njointly the manner in which their respective interests in Joint Intellectual\nProperty shall be perfected and enforced. Specifically, Seller and 3Com shall\njointly decide: (i) the subject matter for which patent applications and\napplications for copyright registrations will be prepared; (ii) the resources to\nbe utilized in the preparation and prosecution of such applications; (iii) the\nparties' rights to review and\/or approve such applications and other papers\nprior to filling in, or submission to, the patent, copyright and trademark\noffices in the United States; (iv) the allocation of expenses incurred in the\npreparation, prosecution and maintenance of patent applications, patents, and\ncopyright registrations and the like; (v) matters regarding the enforcement,\nthrough litigation, licensing or otherwise of the Joint Intellectual Property\nagainst third parties; and (vi) the manner in which revenue resulting from\nenforcement of Joint Intellectual Property will be shared between Seller and\n3Com. Should a party choose not to participate in securing or protecting an\nelement of Joint Intellectual Property (by notifying the other party in writing\nto such effect), the other party may secure or protect its claims to such Joint\nIntellectual Property and shall be entitled to reap the benefit of its efforts\nwithout accounting to the other party, including without limitation retaining\nthe full amount of any settlement or damage award from a third party.\n\n                                      14.\n\n \n     16.11   INFRINGEMENT BY THIRD PARTIES. If either party learns of any\npossible infringement or misappropriation of the other party's Intellectual\nProperty Rights related to the Products and Devices, it shall immediately give\nnotice thereof to the other party. Each party agrees to cooperate with the\ninfringed party's reasonable efforts to seek legal remedies for such\ninfringements and misappropriations.\n\n     16.12   ALTERATION OF THE PRODUCT. All modifications to the Product shall\nbe done through Seller or with Seller's prior written consent. All modifications\nrequested by 3Com will be related to the enabling of the 3Com Branded CR201 and\nwill be addressed in accordance with Section 14 above. No modifications will be\nmade that would result in a violation of the license restrictions set forth in\nSection 16.5.\n\n17.  EXPORT LAW COMPLIANCE; COMMODITY CLASSIFICATION.\n\n     17.1    Neither party will export or reexport, directly or indirectly, the\nDevices, Products or technical data acquired under this Agreement or the \"direct\nproduct\" of software programs or such technical data to any country for which\nthe United States Government or any agency thereof, at the time of export,\nrequires an export license or other governmental approval, without first\nobtaining such license or approval. The term \"direct product\" as used herein\nmeans the immediate product (including processes and services) produced directly\nby the use of the technical data or software programs. Both parties will\ncooperate, to effect compliance with all applicable import and\/or export\nregulations. In addition, the parties agree to comply with all applicable local\ncountry import and\/or export laws or regulations in the country(ies) of\nprocurement, production and\/or end destination of the Product. Both parties\nunderstand that the foregoing obligations are legal requirements and agree that\nthey shall survive any term or termination of this Agreement.\n\n18.  WARRANTY.\n\n     18.1    LIMITED PRODUCT WARRANTY.\n\n             18.1.1    LIMITED WARRANTY. Seller warrants that all Products\n(including associated firmware) sold by Seller to 3Com under the terms of this\nAgreement will be materially free from defects in workmanship and materials and\nsubstantially conform to the Specifications under normal use and service for a\nperiod of twenty-seven (27) months after delivery to 3Com. If any Product or\npart thereof contains a material defect in materials or workmanship, or\notherwise fails to conform to the Specifications, during the warranty period,\nSeller shall at its expense correct any such defect by repairing such defective\nProduct or part or, at Seller's option, by delivering to 3Com an equivalent\nProduct or part replacing such defective Product or part. Seller shall waive any\nexpedite charges to 3Com in order to effect earliest reasonable replacement of\nsuch defective Product(s).\n\n             18.1.2    RETURN OF PRODUCTS. 3Com will promptly notify Seller in\nwriting of any nonconforming Product. Such notification shall include serial\nnumbers and reason for nonconformance. Nonconforming Products will be repaired\nor replaced as specified in Exhibit C.\n\n     18.2    WARRANTIES EXCLUSIVE. THE FOREGOING WARRANTIES, TERMS OR CONDITIONS\nARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, \n\n                                      15.\n\n \nTERMS OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW,\nSTATUTORY OR OTHERWISE, INCLUDING WARRANTIES, TERMS OR CONDITIONS OF\nMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.\n\n     18.3    WARRANTY EXCLUSIONS. SELLER SHALL NOT BE LIABLE UNDER ANY WARRANTY\nIF ITS TESTING AND EXAMINATION DISCLOSES THAT THE ALLEGED DEFECT IN THE PRODUCT\nDOES NOT EXIST OR WAS CAUSED BY 3COM'S OR ITS END USER'S MISUSE, NEGLECT,\nIMPROPER INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR, OR BY\nACCIDENT, FIRE, LIGHTNING OR OTHER HAZARD.\n\n     18.4    \"AS IS.\" The DSL Specifications, the Device Software and the Seller\nTechnology are provided to 3Com \"AS IS,\" without any warranty of any kind.\nWITHOUT LIMITING THE FOREGOING, SELLER MAKE NO WARRANTIES, EXPRESS OR IMPLIED,\nBY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED\nWARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR INTENDED\nUSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF\nDEALING, USAGE OR TRADE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT,\nINCLUDING WITHOUT LIMITATION STATEMENTS REGARDING THE SUITABILITY FOR USE, OR\nPERFORMANCE OF EQUIPMENT OR DEVICES THAT COMPLY WITH THE DSL SPECIFICATIONS,\nWHETHER MADE BY SELLER OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY FOR ANY\nPURPOSE OR GIVE RISE TO ANY LIABILITY OF SELLER.\n\n     18.5    NO WARRANTY PASS THROUGH. 3Com will not pass through to its\ncustomers or any other third party any warranties made by Seller hereunder and\nwill expressly indicate to its customers that they must look solely to 3Com in\nconnection with any problems, warranty claims or other matters concerning the\nProduct and the Device.\n\n19.  INDEMNIFICATION; INSURANCE.\n\n     19.1    INFRINGEMENT INDEMNITY.\n\n               (A) Seller shall indemnify, defend and hold 3Com harmless from\nand against any and all liabilities, losses, damages, fees, costs and expenses,\nincluding without limitation reasonable attorneys' fees, incurred by 3Com\nresulting from a third party claim, suit, action or proceeding (a \"Claim\")\nalleging that the DSL Specifications, the Seller Technology, the Seller Software\nor the Product infringes a third party U.S. patent or copyright or\nmisappropriates any third party's trade secrets; provided that 3Com (i) promptly\nnotifies Seller in writing of such Claim; (ii) provides Seller sole control of\nthe defense or settlement of such Claim; and (iii) provides Seller assistance at\nSeller's request and reasonable expense. 3Com may participate in the defense or\nsettlement of the Claim at its own expense. If a final injunction is obtained\nagainst 3Com for use of the Seller Software, the Product, the Seller Know-how or\nthe DSL Specifications, or if Seller reasonably believes that such injunction is\nlikely, Seller will, at its option and its expense, either (i) procure for 3Com\nthe right to continue using such Seller\n\n                                      16.\n\n \nSoftware, the Product, the Seller Know-How, the DSL Specifications or the\ninfringing portions of the Seller Technology, or (ii) modify the Seller\nSoftware, the Product, the Seller Know-how or the DSL Specifications or the\ninfringing portions thereof so that they become non-infringing. If in Seller's\nopinion either of the above is not commercially feasible, 3Com shall promptly\ncease selling Devices or Products, as applicable, and Seller shall refund to\n3Com an amount equal to the royalties paid by 3Com for the infringing Seller\nTechnology or amounts paid for the infringing Product units, depreciated on a\nfive-year straight line basis, calculated backwards from the date of infringing\nevent (i.e., payments made on the day of the infringing event would be refunded\nfully, and payments made five (5) years prior to the event would not be refunded\nat all, with a linear decrease in-between). Seller will have no liability or\nobligation to indemnify for any claim arising from (i) the combination of Seller\nTechnology, the Seller Software, the Device or the Product with 3Com or third\nparty materials or intellectual property, unless it is determined by a court of\ncompetent jurisdiction that the Seller Technology is the infringing element of\nsuch Claim; (ii) the modification or translation of Seller Technology, the\nSeller Software, the Device or the Product or any portion of the Seller\nTechnology; (iii) any use by 3Com of the Seller Technology after 3Com becomes\naware that the Seller Technology, the Seller Software, the Device or the Product\nmay be infringing; or (iv) any Improvements created by a party other than\nSeller.\n\n               (B) 3Com shall indemnify, defend and hold Seller harmless from\nand against any and all liabilities, losses, damages, fees, costs and expenses,\nincluding without limitation reasonable attorneys' fees, incurred by Seller\nresulting from a Claim that the manufacture, use or sale of the Device infringes\nany patent, copyright or other proprietary rights of any third party or\nmisappropriates any trade secret of any third party; provided that such Claim is\nnot a Claim based solely on the DSL Specifications, the Seller Software, the\nProduct or the Seller Technology for which Seller indemnifies 3Com pursuant to\nSection 19.1(a); and provided further that Seller (i) promptly notifies 3Com in\nwriting of such Claim; (ii) provides 3Com sole control of the defense or\nsettlement of such claim; and (iii) provides Seller assistance at Seller'\nrequest and reasonable expense.\n\n     19.2    LIABILITY INDEMNITY. 3Com agrees to indemnify and hold Seller\nharmless from and against any and all liabilities, losses, damages, costs, fees\nand expenses, including without limitation reasonable attorneys' fees, and to\ndefend Seller against, any and all Claims resulting from or arising out of\n3Com's acts or omissions to act arising from or related to the subject matter of\nthis Agreement, including but not limited to any liabilities, damages, or losses\nwhatsoever with respect to death or injury to any person and damage to any\nproperty arising from the possession, manufacture, use, sale or administration\nof the Devices or the Product by 3Com; provided that Seller (i) promptly\nnotifies 3Com in writing of such Claim; (ii) provides 3Com sole control of the\ndefense or settlement of such claim; and (iii) provides 3Com assistance at\n3Com's request and reasonable expense.\n\n     19.3    ENTIRE LIABILITY. The foregoing provisions of this Section 19 state\nthe entire liability and obligations of each party and the exclusive remedy of\neach party with respect to any alleged Intellectual Property Rights infringement\nor misappropriation by the Device, the DSL Specifications, the Seller Software,\nthe Product, or the parties' respective know-how incorporated in the Device.\n\n                                      17.\n\n \n  19.4    INSURANCE. Seller shall carry and maintain liability insurance\ncoverage to satisfactorily cover its obligations under this Agreement. Upon\n3Com's request, Seller shall provide 3Com with a Certificate of Insurance\nevidencing such coverage.\n\n20.  LIMITATION OF LIABILITY.\n\n     EXCEPT FOR BREACHES OF SECTIONS 16 OR 21, IN NO EVENT, WHETHER BASED IN\nCONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), SHALL EITHER PARTY\nBE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OF ANY KIND\nOR FOR LOSS OF PROFITS OR REVENUE OR LOSS OF BUSINESS ARISING OUT OF OR RELATING\nTO THIS AGREEMENT OR THE BREACH THEREOF, WHETHER OR NOT THE PARTY WAS ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGE. NOTHING HEREIN SHALL HAVE THE EFFECT OF LIMITING\nOR EXCLUDING EITHER PARTY'S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY\nNEGLIGENCE. EXCEPT FOR BREACHES OF SECTIONS 16 OR 21, IN NO EVENT SHALL EITHER\nPARTY'S LIABILITY TO THE OTHER HEREUNDER EXCEED THE GREATER OF TWO MILLION\nDOLLARS ($2,000,000) OR THE AMOUNTS PAID BY 3COM TO SELLER HEREUNDER. Each party\nacknowledges and agrees that the foregoing limitations on liability are\nessential elements of the basis of the bargain between the parties and that in\nthe absence of such limitations the material and economic terms of this\nAgreement would be substantially different.\n\n21.  CONFIDENTIALITY.\n\n     21.1    CONFIDENTIAL INFORMATION. Information that is transmitted by one\nparty to the other in connection with the performance or implementation of this\nAgreement and, if in written form, is marked \"confidential\" or with a similar\nlegend by the disclosing party before being furnished to the other, or if\ndisclosed orally or visually is identified as such prior to disclosure and\nsummarized, in writing, by the disclosing party to the receiving party within\nthirty (30) days shall be deemed to be confidential information of the\ndisclosing party. Each party agrees that it shall use the same degree of care\nand means that it utilizes to protect its own information of a similar nature,\nbut in any event not less than reasonable care and means, to prevent the\nunauthorized use or the disclosure of such confidential information to third\nparties. The confidential information may be disclosed only to employees or\ncontractors of a recipient with a \"need to know\" who are instructed and agree\nnot to disclose the confidential information and not to use the confidential\ninformation for any purpose, except as set forth herein. Recipient shall have\nappropriate written agreements with any such employees or contractors sufficient\nto allow the recipient to comply with the provisions of this Agreement. Each of\nthe parties further agrees to make no use of such confidential information\nexcept as expressly permitted by this Agreement.\n\n     Each party agrees that it shall use the same degree of care and means that\nit utilizes to protect its own information of a similar nature, but in any event\nnot less than reasonable care and means, to prevent the unauthorized use or the\ndisclosure of such confidential information to third parties. The confidential\ninformation may be disclosed only to employees or contractors of a recipient\nwith a \"need to know\" who are instructed and agree not to disclose the\nconfidential information and not to use the confidential information for any\npurpose, except as set forth \n\n                                      18.\n\n \nherein. Recipient shall have appropriate written agreements with any such\nemployees or contractors sufficient to allow recipient to comply with the\nprovisions of this Agreement.\n\n     21.2    EXCEPTIONS. The confidential information of a party shall not\ninclude and the foregoing obligation shall not apply to data or information\nwhich: (i) was in the public domain at the time it was disclosed or falls within\nthe public domain, except through the fault of the receiving party; (ii) was\nknown to the receiving party at the time of disclosure without an obligation of\nconfidentiality; (iii) was disclosed after written approval of the disclosing\nparty; (iv) becomes known to the receiving party from a source other than the\ndisclosing party without breach of this Agreement by the receiving party; (v) is\nfurnished to a third party by the disclosing party without an obligation of\nconfidentiality; or (vi) was independently developed by the receiving party\nwithout the benefit of confidential information received from the disclosing\nparty. Nothing in this Agreement shall prevent the receiving party from\ndisclosing confidential information to the extent the receiving party is legally\ncompelled to do so by any governmental investigative or judicial agency pursuant\nto proceedings over which such agency has jurisdiction; provided, however, that\nprior to any such disclosure, the receiving party shall (a) assert the\nconfidential nature of the confidential information to the agency; (b)\nimmediately notify the disclosing party in writing of the agency's order or\nrequest to disclose; and (c) cooperate fully with the disclosing party in\nprotecting against any such disclosure and\/or obtaining a protective order\nnarrowing the scope of the compelled disclosure and protecting its\nconfidentiality.\n\n22.  PUBLICITY.\n\n     Seller shall not disclose, advertise, or publish the existence or the terms\nor conditions of this Agreement, financial or otherwise, without the prior\nwritten consent of 3Com.\n\n23.  FEDERAL ACQUISITION REGULATIONS.\n\n     In furnishing the Products hereunder, Seller agrees to comply with all\napplicable Federal Acquisition Regulations (FARs) and related laws, rules,\nregulations and executive orders in connection with its activities under this\nAgreement, including, without limitation, the following FAR clauses: 52.222-26 -\nEqual Opportunity, 52.222-35 - Affirmative Action for Special Disabled and\nVietnam Era Veterans and 52.222-36 - Affirmative Action for Handicapped Workers.\nThe Product is a \"commercial item,\" as that term is defined at 48 C.F.R. 2.101\n(Oct 1995), containing \"commercial computer software\" and \"commercial computer\nsoftware documentation,\" as such terms are used in 48 C.F.R. 12.212 (Sep 1995)\nand will be provided to the U.S. Government only as a commercial end item.\nConsistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4\n(Jun 1995), all U.S. Government end users acquire the Product Software\nincorporated in the Product with only those rights set forth herein. Similar\nrestrictions will also be imposed on any licenses of Device Software to U.S.\nGovernment End Users.\n\n24.  TERM AND TERMINATION.\n\n     24.1    TERM. This Agreement shall commence on the Effective Date and shall\ncontinue for three (3) years thereafter, unless otherwise specified herein or\nunless terminated sooner under the provisions set forth herein. Thereafter, this\nAgreement shall automatically be renewed for \n\n                                      19.\n\n \nsuccessive one (1) year terms, unless one party requests in writing at least\nninety (90) days prior to the expiration of the then current term, that this\nAgreement not be so renewed.\n\n     24.2    TERMINATION FOR CAUSE. With the exception of the continuing\nobligations, as set forth in Section 24.3, herein, either party shall have the\nright to terminate this Agreement for cause as a result of:\n\n             24.2.1    The failure of the other party to perform any material\nterm or condition of this Agreement and to remedy such failure within sixty (60)\ndays after written notice of such failure given by the non-defaulting party; or\n\n             24.2.2    The filing by or against the other party of a petition\nfor liquidation under the U.S. Bankruptcy Code or corresponding laws or\nprocedures of any applicable jurisdiction; or\n\n             24.2.3    The filing by or against the other party of any other\nproceeding concerning bankruptcy, insolvency, dissolution, cessation of\noperations, or the like by the other party. If such proceeding is involuntary\nand is contested in good faith, this Agreement shall terminate only after the\npassage of one hundred twenty (120) days without the dismissal of such\nproceedings; or\n\n             24.2.4    The voluntary or involuntary execution upon; the\nassignment or conveyance to a liquidating agent, trustee, mortgages or assignee\nof whatever description; or the making of any judicial levy against a\nsubstantial percentage of the other party's assets, for the benefit of its\ncreditors; or\n\n             24.2.5    The appointment of a receiver, keeper, liquidator or\ncustodian of whatever sort of description, for all or a substantial portion of\nthe other party's assets; or\n\n             24.2.6    The termination, dissolution, insolvency or failure in\nbusiness of the other party, the distribution of a substantial portion of its\nassets, or its cessation to continue all or substantially all of its business\naffairs.\n\n     24.3    RIGHTS AND OBLIGATIONS UPON TERMINATION OR EXPIRATION.\n\n               (A) PAYMENT. The termination or expiration of this Agreement\nshall in no way relieve either party from its obligations to pay the other any\nsums accrued hereunder prior to such termination or expiration.\n\n               (B) RETURN OF DOCUMENTATION AND CONFIDENTIAL INFORMATION. Upon\nany termination of this Agreement, each party shall immediately return to the\nother party all documentation, confidential information and any other tangible\nitems in its possession or under its control evidencing the know-how of the\nother party.\n\n               (C) LICENSE TERMINATION. Except as set forth in this Section\n24.3, upon any termination of this Agreement, all licenses granted by either\nparty under this Agreement shall terminate.\n\n                                      20.\n\n \n               (D) INVENTORY. Upon termination of this Agreement resulting from\na breach by Seller, 3Com shall be entitled to sell Devices manufactured prior to\nthe termination date hereof for a period of ninety (90) days following such\ntermination.\n\n               (E) ONGOING SUPPORT. Upon termination of this Agreement, 3Com\nshall be entitled to provide reasonable support to customers; provided, however,\nthat such support shall not include any updates or upgrades to the Devices other\nthan minor error corrections or repairs.\n\n               (F) SURVIVAL. Except as set forth in the applicable section,\nSections 1, 3.3 (solely as set forth in Exhibit C), 7 (except Section 7.9), 8,\n9, 16.10, 18.3, 18.4, 18.5, 20, 21, 24 and 26 shall survive any termination or\nexpiration of the Agreement for a period of five (5) years, notwithstanding the\nforegoing, Section 21 shall survive for a period of fifteen (15) years following\ntermination or expiration of the Agreement for purposes of protecting the\nconfidentiality of the source code of the Seller Software and for any design\ndocuments related to the Product or the Device.\n\n25.  MANUFACTURING RIGHTS.\n\n     25.1    MANUFACTURING LICENSE OPTION. 3Com may request to manufacture the\n3Com Branded Product units instead of purchasing such units from Seller. In such\nevent, the parties agree to discuss in good faith the terms of such\nmanufacturing license. The failure to reach such agreement shall not constitute\na breach of the Agreement.\n\n26.  GENERAL.\n\n     26.1    RELATIONSHIP OF THE PARTIES. Each of the parties shall at all times\nduring the term of this Agreement act as, and shall represent itself to be, an\nindependent contractor, and not an agent or employee of the other.\n\n     26.2    ENTIRE AGREEMENT. This Agreement and Exhibits hereto are intended\nas the complete, final and exclusive statement of the terms of the agreement\nbetween the parties regarding the subject matter hereof and supersedes any and\nall other prior or contemporaneous agreements or understandings, whether written\nor oral, between them relating to the subject matter hereof. This Agreement may\nnot be modified except in writing executed by both parties. The terms and\nconditions of this Agreement shall prevail notwithstanding any conflict with the\nterms and conditions of any purchase order, acknowledgment or other instrument\nsubmitted by 3Com or Seller.\n\n     26.3    FORCE MAJEURE. Neither party shall be liable to the other for any\nalleged loss or damages resulting from failure to perform due to acts of God,\nnatural disasters, acts of civil or military authority, government priorities,\nfire, floods, epidemics, quarantine, energy crises, war or riots. Each party\nshall promptly notify the other party of such event. If Seller is unable to\ndeliver in accordance with agreed delivery schedule, 3Com may either (i) extend\nthe time of performance, or (ii) cancel the uncompleted portion of the purchase\norder at no cost to 3Com.\n\n     26.4    NOTICES. Except for purchase orders and acknowledgments which may\nbe sent by normal carrier, all notices and communications hereunder are required\nto be sent to the address\n\n                                      21.\n\n \nor facsimile number stated below (or such other address or facsimile number as\nsubsequently notified in writing to the other party): (i) by facsimile with\nconfirmation of transmission, (ii) personal same or next day delivery or (iii)\nsent by commercial overnight courier with written verification of delivery. All\nnotices so given shall be deemed given upon the earlier of receipt or three (3)\ndays after dispatch.\n\n     Any notices sent to 3Com hereunder should be sent to:\n\n               3Com Corporation\n               4 Technology Drive\n               Westborough, MA 01581\n               Attn.: Al Brisard\n               Fax No. (508) 366-2214\n\n     with a copy to:\n\n               3Com Corporation\n               Legal Department\n               3800 Golf Road\n               Rolling Meadows, IL 60008\n               Attn.: Director of xDSL Legal Services\n               Fax No. (847) 262-0186\n\n     Any notices sent to Seller hereunder should be sent to:\n\n \n                         Copper Mountain Networks, Inc.\n                         2470 Embarcadero Way\n                         Palo Alto, California 94303\n                         Attention: Vice-President, Business Development\n                         Voice: 650-858-8500, ext. 260\n                         Fax: 650-858-8085\n\n     Fax Copies to:      Copper Mountain Networks, Inc.\n                         3931 Sorrento Valley Boulevard\n                         San Diego, California 92121\n                         Attention: Chief Financial Officer\n                         Fax: 650- 453-9244\n\n                         Cooley Godward LLP\n                         3000 El Camino Real\n                         Palo Alto, California 94306\n                         Attention: Anthony Klein\n                         Fax: 650-849-7400\n\n     26.5    WAIVER. A waiver of any default hereunder or of any of the terms\nand conditions of this Agreement shall not be deemed to be a continuing waiver\nor a waiver of any other default or of any other term or condition, but shall\napply solely to the instance to which such waiver is directed. The exercise of\nany right or remedy provided in this Agreement shall be without \n\n                                      22.\n\n \nprejudice to the right to exercise any other right or remedy provided by law or\nequity, except as expressly limited by this Agreement.\n\n     26.6    SEVERABILITY. In the event any provision of this Agreement is found\nto be invalid, illegal or unenforceable, the validity, legality and\nenforceability of any of the remaining provisions shall not in any way be\naffected or impaired.\n\n     26.7    PRESS RELEASE. Promptly following, but in no event later than two\n(2) weeks from, the Effective Date, the parties shall issue a mutually\nacceptable joint press release announcing this transaction.\n\n     26.8    ASSIGNMENT. Neither party may assign or transfer this Agreement,\nwhether in whole or part, or any of its rights or obligations under this\nAgreement without the prior written consent of the other, except that either\nparty may transfer all its rights and obligations to a successor in interest\nupon a merger, reorganization, change of control, acquisition or sale of all or\nsubstantially all its assets. Any attempted assignment without such written\nconsent shall be null and void.\n\n     26.9    PHOTOCOPY OF ORIGINAL. Neither party shall object to the use of a\nphotocopy of the original of this Agreement for the purpose of making any\nrequired or allowed public filings.\n\n     26.10   GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE\nWITH, AND ALL DISPUTES HEREUNDER SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF\nCALIFORNIA, EXCEPT ITS CONFLICT OF LAW RULES. THE PARTIES HEREBY AGREE THAT THE\nSUPERIOR COURT OF THE STATE OF CALIFORNIA FOR SANTA CLARA COUNTY AND\/OR THE\nUNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SHALL HAVE\nJURISDICTION AND VENUE OVER ANY CONTROVERSIES, PROCEEDINGS, OR DISPUTES IN\nCONNECTION WITH THIS AGREEMENT. THE PARTIES EXCLUDE IN ITS ENTIRETY THE\nAPPLICATION TO THIS AGREEMENT OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR\nTHE INTERNATIONAL SALE OF GOODS.\n\n     26.11   ATTORNEY'S FEES. In any action to enforce this Agreement, the\nprevailing party shall be awarded all arbitration costs or courts costs and\nreasonable attorneys' fees incurred, including such costs and attorneys' fees\nincurred in enforcing and collecting any judgment.\n\n     26.12   COUNTERPARTS. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of which shall\nconstitute one and the same instrument.\n\n     26.13   CHOICE OF LANGUAGE. The original of this Agreement has been written\nin English and the governing language of this Agreement shall be English.\n\n     26.14   LIST OF EXHIBITS:\n\n             Exhibit A Product List and Prices\n             Exhibit B Product Specifications\n             Exhibit C Support Services\n\n                                      23.\n\n \n             Exhibit D    [***]\n             Exhibit E    Marketing Commitments\n\n     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nexecuted by their duly authorized representatives effective as of the date first\nabove written.\n\n3COM CORPORATION                         COPPER MOUNTAIN NETWORKS, INC.\n\n \n\n\nBy: \/s\/ BRIAN GALLAHER                By: \/s\/ MICHAEL STAIGER\n   -----------------------------         ---------------------------------\n\nPrinted Name: Brian Gallaher          Printed Name: Michael O. Staiger\n             -------------------                   -----------------------\n\nTitle: VP &amp; GM DSL Division           Title:  Vice President\n      --------------------------            ------------------------------\n\nDate:  11\/24\/98                       Date:   11\/24\/98\n     ---------------------------           -------------------------------\n\n                                      24.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n                                   EXHIBIT A\n\n                            PRODUCT LIST AND PRICES\n\n\nDESCRIPTION OF PRODUCTS\n\nCR201\n\n3Com Branded CR201\n\n\nPRODUCT PRICE*\n\nCR201                         [***]\n\n3Com Branded CR201            [***]\n\n*This applies for both SDSL and IDSL versions of the Product.\n\nThe parties will endeavor in good faith to drive down the transfer pricing to\n3Com to approximately [***] per unit by February 1, 1999. The parties will meet\nfrequently in the interim to discuss means by which the transfer price may be\nreduced.\n\n                                      25.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n                                   EXHIBIT B\n\n                            PRODUCT SPECIFICATIONS\n\n[To be agreed upon by the mutual consent of the parties within thirty (30) days\nfollowing the Effective Date.]\n\n                                      26.\n\n \n                                   EXHIBIT C\n\n                               SUPPORT SERVICES\n\n1.   [***]\n\n2.   DEFINITIONS.\n\n     AUTHORIZED CALLER. \"Authorized Caller\" means a person or persons designated\nby 3Com as the technical\/engineering support interface for the Products.\n\n     DESIGNATED SUPPORT ENGINEER. \"Designated Support Engineer\" means a person\nor persons designated by Seller as the technical\/engineering support interface\nfor the Products.\n\n     END USER. \"End User\" means a company or organization that uses 3Com\nproducts in the operation of their business.\n\n     ERROR. \"Error\" means a defect in the Product which is reproducible and\nwhich causes such Product not to function substantially in conformance with the\nSpecifications, end user documentation, or other related documentation,\nincluding without limitation any functional specifications or other engineering\ndocumentation for the Product, or commonly accepted operating principles as\ndefined by industry standards. Errors are classified according to the Problem\nseverity.\n\n     INCIDENT. \"Incident\" means a situation which necessitates an End User to\ncontact 3Com for assistance.\n\n     PROBLEM. \"Problem\" means any error, or any actual or perceived failure or\nfunctional impairment that causes reduced functionality to the Product. Problems\nare assigned a classification at the time of 3Com's initial contact with Seller.\nProblem classifications may be changed based upon new information or customer\nsituation. Problems are classified by 3Com according to Severity level, based\nupon Technical and\/or Customer Sensitivity as follows:\n\n          SEVERITY 1: TECHNICAL: Production network failure which results in a\ncritical impact to business operations. No viable workaround is known. Customer\nSensitivity: Customer account is in jeopardy, and there is risk of losing\nbusiness.\n\n                                      27.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n          SEVERITY 2: TECHNICAL: Critical production network service\ninterruption or degradation creating difficulty in the execution of a network\nfunction which results in a critical impact to business operations. Customer\nacceptable workaround is available. Customer Sensitivity: There is potential\nrisk of losing actual or future business.\n\n          SEVERITY 3: TECHNICAL: Significant system problems which prevent some\nnetwork functions from meeting the production specifications or cause particular\nfeatures or functionality to be inoperative. Some business operations are\nimpaired, but the network continues to function. Customer acceptable workaround\nis available. Customer Sensitivity: The problem is impacting the customer's day\nto day business; there is no risk of losing business.\n\n          SEVERITY 4: TECHNICAL: Enhancement requests for hardware, software,\nmanuals or electronic services. Customer Sensitivity: The problem is not\ncurrently impacting the customer's day to day business, but may in the future;\nthere is no risk of losing business.\n\n     REPAIR. \"Repair\" means the repair or replacement of a Product or part.\n\n     SOFTWARE PATCH. \"Software Patch\" refers to executable software created and\nmade available to correct an Error or malfunction identified in a specific\nversion of software.\n\n     SOFTWARE UPDATE. \"Software Update\" means a formal software release (i)\nwhich provides functionality enhancements, reliability enhancements, and other\nmodifications to the Product software or (ii) that is a maintenance release that\ncorrects deficiencies and\/or bugs affecting performance to the published\nspecifications.\n\n     TECHNICAL SUPPORT LEVELS. \"Level\" means a certain class of service provided\nto authorized resellers and end users. Definitions are as follows:\n\n          LEVEL ONE: First call support on all customer calls; technical support\nstaff answers technical inquiries regarding Products, and provides problem\ndiagnostics services for identifying Problems and generic application faults,\nanalysis, and where possible, Problem resolution.\n\n          LEVEL TWO: Specialist level technical support; technical\nsupport\/escalation staff performs Problem isolation and replication, lab\nsimulations and interoperability testing, provides remote diagnostics\ncapabilities and on-site troubleshooting, if required, and implements a solution\nfor a Problem that is not the result of a Product Error. In the case of a\nProduct Error, the technical staff is able to identify the source of the Error,\ncreate a reproducible test case, and document the details of the Error for\nescalation to Seller.\n\n          LEVEL THREE: Backup engineering and technical support; staff isolates\na Problem\/ Error and implements a solution, including, but not limited to, a\nProduct change.\n\n     WORKAROUND. A \"Workaround\" is a feasible change in operating procedures\nwhereby an end user can avoid any deleterious effects of an Error.\n\n                                      28.\n\n \n3. \n\n     3.1  [***]\n\n          [***]\n\n          [***]\n\n     3.2  [***]\n\n     3.3  [***]\n\n                                      29.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n          [***]\n\n          [***]\n\n          [***]\n\n          [***]\n\n          [***]\n\n     3.4  [***]\n\n     3.5  [***]\n\n          [***]\n\n     3.6  [***]\n\n                                      30.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n4.  \n\n     4.1     [***]\n\n     4.2     [***]\n\n     4.3     [***]\n\n     4.4     [***]\n\n     4.5     [***]\n\n     4.6     [***]\n\n                                      31.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n             (I)    [***]\n\n             (II)   [***]\n\n             (III)  [***]\n\n             (IV)   [***]\n\n             (V)    [***]\n\n     4.7     [***]\n\n     4.8     [***]\n\n5.   \n\n     5.1     [***]\n\n     [***]\n\n                                      32.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n[***]\n\n     [***]  \n\n     [***]\n\n     5.2     [***]     \n\n6.  \n\n     [***]\n\n                                      33.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n                                   EXHIBIT D\n\n                                     [***]\n\n\n1.   \n\n     1.1     [***]\n\n     1.2     [***]The parties' respective project managers shall\nparticipate in project review meetings as mutually agreed. Either party may\nchange its project manager from time to time upon notice to the other party.\n\n2.   TESTING.\n\n     2.1     [***], the parties will conduct product quality and DSL \nSpecification conformance testing in accordance with the Testing Criteria.\n\n     2.2     OTHER TESTING. 3Com will be responsible for obtaining or performing\nall necessary government regulatory compliance testing and other testing and\ncertification necessary for the Device.\n\n     2.3     SELLER EQUIPMENT FOR TESTING. In addition to performing DSL\nSpecification conformance testing and such other testing responsibilities as the\nparties may decide to allocate to Seller, Seller will provide 3Com with a DSL\naccess multiplexer (\"DSLAM\") with both SDSL and ISDL capability in a mutually\nacceptable configuration at no charge to be utilized for the sole purpose of\ntesting [***] and for ongoing interoperability testing thereafter. This unit \nwill be kept current with the latest software and hardware as released by Seller\nfor beta and general availability. 3Com shall make no modifications to the DSLAM\nor use it for any other purpose than the testing contemplated in this Section\n2.3 for the Device or any other device or equipment upon which the parties\nmutually agree. Upon expiration or termination of this Agreement for any reason,\n3Com shall return the DSLAM to Seller.\n\n3.   MODIFICATIONS AND FUTURE DEVELOPMENTS.\n\n     3.1     CHANGES TO THE DSL SPECIFICATIONS. During the term hereof, changes\nin telecommunications regulations or in DSL technology may require changes to\nthe DSL Specifications and therefore the Device. Should regulatory or other\nchanges affect the DSL Specifications, Seller shall notify 3Com of such changes,\nor 3Com may propose such changes to\n\n                                      34.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \nSeller. Any modification to the Device that could affect Seller-compatibility is\nsubject to approval by both parties. Seller and 3Com shall work together in\naccordance with the procedures set forth in this Agreement to develop updated\nDevices that conform to the modified DSL Specifications. 3Com agrees not to make\nany modifications to the Devices that will affect the ability of the Devices to\noperate in accordance with the DSL Specifications without Seller's prior written\nconsent.\n\n     3.2     [***]\n\n                                      35.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n                            SCHEDULE A TO EXHIBIT D\n\n                                     [***]\n\nDSL SPECIFICATIONS\n\nto be attached as Attachment A-1\n\nTESTING CRITERIA\n\nto be attached as Attachment A-2\n\nSELLER RESPONSIBILITIES:\n\n     1.      [***]\n     \n     2.      [***]\n\n     3.      [***]\n\n     4.      [***]\n\n     5.      [***]\n\n3COM RESPONSIBILITIES.\n\n     1.      [***]\n\n     2.      [***]\n\n     3.      [***]\n\n     4.      [***]\n\n     5.      [***]\n\n\n\n     [***]\n\n                                      36.\n  \n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \n                                   EXHIBIT E\n\n                             MARKETING COMMITMENTS\n\nJOINT PR ACTIVITIES\n\n     1.      In addition to the joint press release provided for in Section 26.7\nof the Agreement, 3Com will issue a press release announcing the general\navailability of the Device and 3Com will make available one or more marketing\npersonnel to take part with Seller marketing personnel in joint briefings of\nindustry analysts and editors.\n\n     2.      During the term of the Agreement, all Press Release announcements\nregarding the CR201 or the Device will include the following sentence in the\nmain body of the press release prior to the general \"About 3Com\" section:\n\n     \"Copper Mountain Networks, Inc., has verified that the [3Com\n     product name] provides \"CopperCompatible\/TM\/\" interoperability\n     with Copper Mountain DSL equipment.\"\n\nVAR CHANNEL ACTIVITIES\n\n     1.      [***]\n\n     2.      [***]\n\nWWW ACTIVITIES\n\n     1.      3Com will create WWW pages to describe the Product and the Device.\nOn the 3Com WWW home page, 3Com will add an xDSL entry to the \"Select a Product\nCategory\" pull-down menu directing users to the pages which describe the Product\nand the Device.\n\n     2.      [***]\n\n                                      37.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n \nTRADE SHOW\/DEMO ACTIVITIES\n\n     1.      3Com will provide Seller with samples of the 3Com Branded CR201 and\nDevices and permission to display or demo each in Seller trade show booths, demo\nsuites, and at the Seller corporate demo room housed in Seller's offices. Seller\nwill not discuss or show 3Com in a negative manner when undertaking such\nactivities.\n\n     2.      [***] At 3Com's option, Seller will make available personnel to \nhelp staff this demo on a part-time basis. Seller acknowledges that the Seller\nDSLAM does not have to be displayed or in public view at any such booth.\n\nMISCELLANEOUS\n\n     1.      3Com will permit Seller to display 3Com Branded CR201 and Device\nproduct descriptions and images in Seller promotional literature and on the\nSeller WWW site, identified as 3Com products compatible with Seller DSLAMs.\n\n                                      38.\n\n[***] = Certain information on this page has been omitted and filed separately \n        with the Commission. Confidential treatment has been requested with\n        respect to the omitted portions.\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6537,7206],"corporate_contracts_industries":[9516,9509],"corporate_contracts_types":[9613,9620],"class_list":["post-42625","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-3com-corp","corporate_contracts_companies-copper-mountain-networks-inc","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_industries-technology__networking","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42625","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42625"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42625"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42625"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42625"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}