{"id":42741,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/reseller-agreement-com21-inc-and-3com-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"reseller-agreement-com21-inc-and-3com-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/reseller-agreement-com21-inc-and-3com-corp.html","title":{"rendered":"Reseller Agreement &#8211; Com21 Inc. and 3Com Corp."},"content":{"rendered":"<pre>\n                               RESELLER AGREEMENT\n\n\n       THIS AGREEMENT is by and between Com21, Inc. a Delaware corporation with\nprincipal offices at 750 Tasman Drive, Milpitas, California 95035 (\"Company\"),\nand 3Com Corporation, a Delaware corporation located at 5400 Bayfront Plaza,\nSanta Clara, CA 95052-8145 (\"3Com\"). The effective date of this Agreement shall\nbe the date last executed below (\"Effective Date\").\n\n       A. Company and 3Com have entered into a Technology License and Reseller\nAgreement dated as of March 22, 1996.\n\n       B. Company and 3Com mutually desire 3Com to market and sell certain cable\nheadend products and cable modem products developed by Company.\n\n       C. Company and 3Com mutually desire for Company to deposit into escrow\nthe designs and other materials relating to such headend products, and to permit\nthe release of said designs and other materials relating to such headend\nproducts to 3Com upon the occurrence of certain conditions, as more specifically\nset forth below.\n\n       NOW, THEREFORE, in consideration of the mutual covenants and conditions\ncontained herein, the parties agree as follows:\n\n       1.    DEFINITIONS.\n\n             1.1 \"Affiliate\" means with respect to any person, any other person\ncontrolling, controlled by or under direct or indirect common control with such\nperson (for the purposes of this definition \"control,\" when used with respect to\nany specified person, shall mean the power to control the vote of fifty percent\n(50%) or more of the voting securities of such person).\n\n             1.2 \"Authorized Reseller\" means a reseller or distributor\nauthorized by 3Com to distribute any of Company's Products within the Territory.\n\n             1.3 \"Compatibility\" or \"Compatible\" for the Com21 Headend initially\nmeans material compliance with the Ethernet standard interface and,\napproximately six (6) months from the effective date of the Technology License\nand Reseller Agreement, material compliance with the Fast Ethernet standard\ninterface. \"Compatibility\" or \"Compatible\" for the Com21 Modem initially means\nmaterial compliance with the Ethernet standard interface. \"Material compliance\"\nwith the Ethernet or Fast Ethernet standard interface means that the Com21\nHeadend or Com21 Modem, as the case may be, can properly pass data with\nequipment that complies with such standard interface. In all instances\n\"Compatibility\" will also include compliance with the specifications entitled\n\"The Com21 Community Protocol for HFC Networks version 1.04.05 dated January 28,\n1997\", as well as any other specifications mutually agreed to by the parties\nfrom time to time. Furthermore, with respect to the interoperability of the\nCom21 Headend Product with the 3Com Product, Compatibility shall mean the\ncriteria used by Company (in Company's sole discretion) to determine whether the\ninitial generation of the Com21 Modem Product properly interoperates with the\ninitial generation of the Com21 Headend Product (including but not limited\n\n\n\n                                        1\n\n     2\n\n\n\nto functionality and performance criteria).\n\n             1.4 \"Com21 Headend\" means the headend controller unit to be\ndeveloped by Company and all enhancements, upgrades and new versions thereof\nthat are compliant with the Com21 Community Protocol specification referenced in\nSection 1.3 above.\n\n             1.5 \"Com21 Headend Product\" shall mean the Com21 Headend and the\nCom21 Headend Software.\n\n             1.6 \"Com21 Headend Software\" means the Company network management\napplications programs and other Com21 Headend software in object code form\ndescribed in the Design Specifications, and related documentation provided by\nCompany and all enhancements, Upgrades, Updates and new versions thereof made\navailable by the Company.\n\n             1.7 \"Com21 Modem\" means the cable modem unit to be developed by\nCompany and all enhancements, upgrades and new versions thereof.\n\n             1.8 \"Com21 Modem Product\" means the Com21 Modem and the Com21 Modem\nSoftware.\n\n             1.9 \"Com21 Modem Software\" means the Com21 Modem image software and\nother Com21 Modem software in object code form described in the Design\nSpecifications, and related documentation provided by Company and all\nenhancements, Upgrades, Updates and new versions thereof made available by the\nCompany.\n\n             1.10 \"Com21 Software\" shall mean the Com21 Headend Software and the\nCom21 Modem Software.\n\n             1.11 \"Confidential Information\" means that information of either\nparty (\"Disclosing Party\") which is disclosed to the other party (\"Receiving\nParty\") pursuant to this Agreement, in written form and marked \"Confidential\" or\nif disclosed orally, the Disclosing Party shall indicate that such information\nis confidential at the time of disclosure and send a written summary of such\ninformation to the Receiving Party within thirty (30) days of disclosure and\nmark such summary \"Confidential.\" Confidential Information shall include, but\nnot be limited to, trade secrets, know-how, inventions, techniques, processes,\nalgorithms, software programs, schematics, designs, contracts, customer lists,\nfinancial information, sales and marketing plans and business information.\nReferences to 3Com as a Receiving Party or a Disclosing Party shall also include\nall present and future subsidiary and parent companies of 3Com.\n\n             1.12 \"Design Specifications\" means the final design specifications\nfor the Products that, prior to the date of first shipment of the Products by\nCompany to 3Com, will be incorporated into Exhibit A (Design Specifications).\nThe Design Specifications will specify that the Com21 Headend will have the\ncapability to recognize, load, configure and associate the appropriate modem\nimage with the most current Version of the initial Generation and each future\nGeneration of the 3Com Product and at least the two most recent prior Versions\nof each Generation of the 3Com Product, provided that the 3Com Product is\ncompliant with the\n\n\n\n                                        2\n\n     3\n\n\n\nspecifications entitled \"The Com21 Community Protocol for HFC Networks version\n1.04.05 dated January 28, 1997\", as well as any other specifications mutually\nagreed to by the parties from time to time. The Design Specifications will also\nspecify that 3Com will have the ability to distribute patches, updates, upgrades\nand new versions of the Com21 Software and the software for the 3Com Products by\nmaking such patches, updates, upgrades and new versions available for\ndownloading into units of the Products and the 3Com Products, as applicable.\n\n             1.13 \"3Com\" means 3Com Corporation and all its present and future\nsubsidiaries and Affiliates.\n\n             1.14 \"End User\" means an end user who acquires a Product from 3Com\nor an Authorized Reseller.\n\n             1.15 \"End User License Agreement\" has the meaning given it in\nSection 3.3.\n\n             1.16 \"Generation\" means a substantial change in the form, fit or\nfunction of the 3Com Product, as determined by 3Com in its sole discretion.\n\n             1.17 \"Inventory\" means all Products which are: (a) in 3Com's\ncustody, whether or not consigned to, or paid for by, any customer; (b) ordered\nby 3Com but not yet shipped by Company; (c) in transit to 3Com or from 3Com to\n3Com's buyer; or (d) returned to 3Com from any customer of 3Com.\n\n             1.18 \"Large Multiple System Operators\" means customers or potential\ncustomers which purchase the Products and\/or the 3Com Product and for which the\nnumber of homes passed exceeds one million (1,000,000) homes.\n\n             1.19 \"Multiple System Operators\" means customers or potential\ncustomers which purchase the Products and\/or the 3Com Products and for which the\nnumber of homes passed is below one million (1,000,000) homes.\n\n             1.20 \"MLOP Cost\" means the materials, labor, overhead and period\ncosts associated with supplying units of the Product.\n\n             1.21 \"NFR\" means \"not for resale\" copies of the Product, that is,\nthe Product is used for purposes which do not directly produce revenue for 3Com\n(e.g., testing, evaluation, sales, marketing, engineering and demonstration\npurposes).\n\n             1.22 \"Products\" means the Com21 Headend Products and the Com21\nModem Products set forth in Exhibit B hereto, and any additional amendments\nthereto that may be signed by the parties and attached to this Agreement, and\nshall include all enhancements, fixes, Updates, Upgrades, modifications to and\nwith respect to the Com21 Headend Products only, future versions of the Com21\nHeadend Products made by or for Company.\n\n             1.23 \"Technology Documentation\" means all designs, drawings,\nspecifications, test information, vendor lists, source and object code versions\nof the software incorporated into or\n\n\n\n                                        3\n\n     4\n\n\n\nused by Company to design, manufacture or maintain the Com21 Headend Products\nand all other data and information owned by Company or to which Company has the\nright to grant sublicenses with respect to the design, manufacture and use of\nthe Com21 Headend Products. The Technology Documentation will include a list of\nthird party technology, if any, in the Com21 Headend Products to which Company\ncannot sublicense the rights envisioned by the manufacturing license below, and\npersons at such third parties to contact regarding obtaining licenses. The\nTechnology Documentation will further include a list of consultants, if any,\nwhom Company reasonably believes could provide technical support to 3Com in\nconnection with 3Com's exercising of the fights under the manufacturing license\nbelow. Attached as Exhibit F to this Agreement is a complete list of the\nTechnology Documentation that exists as of such date. Company shall update such\nTechnology Documentation if it updates its own archival copy of the Technology\nDocumentation.\n\n             1.24 \"Technology License and Reseller Agreement\" means the\nTechnology License and Reseller Agreement between the parties dated March 22,\n1996.\n\n             1.25 \"Territory\" means the United States and the rest of the world.\n\n             1.26 \"Update\" shall mean a replacement of all or a portion of a\nProduct that is primarily intended to fix an error or deficiency in the Product.\n\n             1.27 \"Upgrade\" means a replacement of all or a portion of a Product\nthat is primarily intended to add functionality or performance to the Product\nand for which a separate or additional charge can be made to the End User.\n\n             1.28 \"Version\" means a basic change in the form, fit or function of\nthe 3Com Product, as determined by 3Com in its sole discretion.\n\n             1.29 \"3Com Product\" means the initial Generation and each future\nGeneration of the cable modem products developed by 3Com under the terms of the\nTechnology License and Reseller Agreement and all updates, up-grades and new\nversions thereto.\n\n       2.          APPOINTMENT.\n\n             2.1 Subject to the terms and conditions of this Agreement, Company\nhereby appoints 3Com as a non-exclusive reseller and distributor of Products in\nthe Territory, and grants 3Com a non-exclusive license to use, demonstrate,\nsell, market, publicly perform and publicly display for marketing purposes, and\ndistribute the Products directly or through Authorized Resellers. Said license\nshall include a license under all presently existing and future copyrights,\npatents, trade secrets and other rights necessary for 3Com and its Authorized\nResellers to perform all acts contemplated herein. 3Com accepts such appointment\nand license and agrees to acquire the Products from Company under the terms and\nconditions of this Agreement.\n\n             2.2 Subject to the terms of this Agreement, 3Com shall have\ncomplete freedom to determine the manner by which it wishes to market and sell\nthe Products.\n\n\n\n\n                                        4\n\n     5\n\n\n\n             2.3 3Com may sell the Products in the Territory directly to End\nUsers or through Authorized Resellers. 3Com shall have sole authority to\nauthorize Authorized Resellers in accordance with criteria determined by 3Com.\n\n             2.4 No ownership of any intellectual property rights to the\nProducts is transferred to 3Com hereunder, all of which rights shall remain with\nCompany or the applicable third party owner. As between the parties, Company\nretains all title to, and except as expressly and unambiguously licensed herein,\nall rights and interest in the Com21 Software and all intellectual property and\nproprietary rights throughout the world protecting the Products.\n\n             2.5 This Agreement shall not be construed as restricting in any way\n3Com's freedom to make, use or distribute any other products, including any\nproducts which may compete with the Products. Nothing in this Agreement shall be\nconstrued as limiting in any manner Company's marketing or distribution\nactivities or its appointment of other dealers, distributors, licensees or\nagents.\n\n             2.6 Subject to Section 8.12 below, Company reserves the right to\nchange, modify or discontinue any Product at any time.\n\n       3. DUTIES AND OBLIGATIONS OF 3COM.\n\n             3.1 3Com agrees to use reasonable commercial efforts to encourage\nand develop the sales potential for the Products, to employ competent sales\npersonnel to meet the demands and needs for marketing of the Products, and to\nencourage the purchase of the Products by Authorized Resellers and End Users.\n\n             3.2 Except as otherwise contemplated in this Agreement or the\nTechnology License and Reseller Agreement, and except to the extent expressly\nprohibited by applicable law, 3Com shall not modify or reverse engineer any\nProduct without the prior written consent of Company.\n\n             3.3 This Section 3.3 shall apply only if Company has provided an\nend user license agreement to be distributed with the Com21 Software. No\ndistribution or license of the Com21 Software by 3Com shall be made except\npursuant to a written agreement, whether distributed in printed or electronic\nform (an \"End User License Agreement\") that is at least as protective of Company\nand its rights as Company's end user software license agreement, set forth in\nExhibit E (Com21 End User Software License Agreement) attached hereto. Company\nagrees that if it licenses Com21 Software on terms more favorable to the end\nuser than the terms set forth in Exhibit E (Com21 End User Software License\nAgreement), then such more favorable terms shall automatically apply.\n\n             3.4 3Com agrees to use commercially reasonable efforts to keep\nCompany informed as to any problems encountered with the Products and any\nresolutions arrived at for those problems, and to communicate promptly to\nCompany any and all modifications, design changes or improvements of the\nProducts suggested by any customer.\n\n\n\n\n                                        5\n\n     6\n\n\n\n       4.    DUTIES AND OBLIGATIONS OF COMPANY.\n\n             4.1 With respect to each Product, Company shall provide 3Com within\na mutually agreeable time, at no cost, an electronic copy of the Company's\nProduct specifications and Product sales literature for use in 3Com's sales\nefforts. 3Com will be permitted to incorporate such materials into its own\nmaterials. 3Com may purchase from Company hard copies of such Company\nspecifications and sales literature at the prices set forth in Exhibit B\n(Product and Price List). In its distribution efforts, 3Com will use the then\ncurrent names (the \"Marks\") used by Company for the Products. However, all\nadvertisements, promotional materials, packaging and anything else bearing a\nMark shall identify Company as the Mark owner and unless used in substantially a\nform previously approved by Company, shall be subject to prior approval of\nCompany, which approval shall not be unreasonably withheld or delayed. 3Com also\nagrees not to contest during or after the term of this Agreement any Mark used\nby Company anywhere in the world (or any name, mark or designation similar\nthereto) and to reasonably cooperate with Company (at Company's expense) in\nCompany's efforts to register the Marks. 3Com shall not apply to register any of\nthe Marks without Company's prior written consent, which consent shall not be\nunreasonably withheld or delayed. If Company so consents, 3Com may promptly\nregister at its expense such Marks in the name of and for the sole benefit and\nownership of Company. Company shall provide 3Com one copy of each maintenance\nmanual, operator's manual, any other manuals for the Products and field change\norders and technical bulletins incorporating engineering changes for Products.\n3Com may copy and distribute such materials internally and to its Authorized\nResellers.\n\n             4.2 Company shall provide 3Com within a mutually agreeable time, at\nCompany's MLOP Cost, (a) [*] Com21 Modem Product, for use by 3Com and its\nAuthorized Resellers.\n\n             4.3 Company shall use commercially reasonable efforts to make\navailable, at no cost to 3Com, a reasonable number of man hours of appropriate\nmembers of Company's technical personnel to assist 3Com to keep current with the\nlatest technological developments in the Products. Each party shall designate an\nappropriately trained employee as a technical liaison and apprise the other\nparty of the liaison's name.\n\n             4.4 Company represents and warrants to 3Com that upon and after the\nEffective Date of this Agreement, Company will not provide any Product to 3Com\nwhich has come into physical contact with: (i) a Class I substance, as defined\nin Section 611 of the Federal Clean Air Act (the \"Act\"), during any portion of\nthe manufacturing process; or (ii) a Class II substance, as defined in the Act\nand Title 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\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n\n                                        6\n\n\n     7\n\n\n\n\n       Company further represents and warrants that 3Com shall not be subjected\nto any warning or labeling requirements regarding a Class I substance or a Class\nII substance pursuant to the Act or any regulation promulgated under the Act, as\na result of any Product provided by Company to 3Com under this Agreement.\n\n       Without limitation to the foregoing, Company represents and warrants that\nin all 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       If Company discovers a breach of any of the representations and\nwarranties in this Section 4.4. it shall immediately notify 3Com of such breach\nin writing, explaining the circumstances constituting the breach and identifying\nthe Product(s) involved. Further, Company shall defend, indemnify and hold\nharmless 3Com and its officers, directors, employees, agents, representatives,\nsuccessors and assigns from any liabilities, losses, demands, claims or\njudgments arising from the breach of any of Company's representations and\nwarranties set forth in this Section 4.4.\n\n             4.5 Company shall give 3Com written notice of Product Updates,\nUpgrades and new versions as soon as reasonably possible, but in any event at\nleast sixty (60) days prior to their availability to Company's customers. Such\nnotices shall contain detail of the changes to the form, fit or function of the\nProduct. Company shall use reasonable efforts to provide 3Com with six (6)\nmonths notice of new Products that Company elects to make available for\ndistribution by 3Com under this Agreement. Company shall also provide 3Com at\nCompany's MLOP Cost with NFR units of the affected Product modules so that 3Com\nhas [*] new versions of Com21 Headend Products and future Com21 Headend Product\nUpgrades, one [*] Com21 Modem Products and future Com21 Modem Product Upgrades,\nconcurrent with the providing of such notice or at the earliest possible date\nthereafter (but always prior to their general availability) for purposes of\nevaluation and testing of Compatibility with 3Com Products.\n\n             4.6 Company agrees to give sixty (60) days prior written notice to\n3Com of any product being considered by Company for distribution to customers\nthrough channels other than this Agreement, which is functionally similar to any\nof the Products or which is designed or will be marketed as compatible with any\nversion of the Product (\"Similar Product\").\n\n             4.7 For a period of twelve (12) months after delivery of each unit\nof the Com21 Headend or Com21 Modem, as the case may be, to the End User,\nCompany warrants to 3Com that such Com21 Headend or Com21 Modem, as the case may\nbe, will substantially conform to the Design Specifications and to any\nperformance or other specifications for the Com21 Headend or Com21 Modem, as the\ncase may be, published or made generally available by Company. For a period of\nninety (90) days after installation of the Com21 Software by the End User,\nCompany warrants that the media on which the Com21 Software is supplied will be\nfree from defects in materials or workmanship. 3Com shall notify Company of any\nnonconformance during the applicable warranty period. The parties shall follow\nthe RMA procedures set forth in Section 3.5\n\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n                                        7\n\n     8\n\n\n\n(Return Material Authorization) of Exhibit C (Support Services). Company's\nexclusive obligation with respect to nonconforming Product shall be, at\nCompany's option, to repair or replace such Product within the turnaround time\ndescribed in Section 3.5(ii) (Turn-Around Time) of Exhibit C (Support Services),\nor to refund to 3Com the purchase price paid for said Product. In the event a\nProduct completely fails to function within the first forty-eight (48) hours of\ninstallation (dead- on-arrival or DOA) and is verified as such by Company,\nCompany shall waive any charges to 3Com in order to effect the earliest\nreasonable repair or replacement of such defective Product. Replacement and\nrepaired Products shall be warranted for the remainder of the warranty period or\nninety (90) days, whichever is longer. Company will upgrade repaired Product to\nthe most recent revision level of such Product at no cost to 3Com. THE FOREGOING\nWARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR\nIMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE,\nINCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.\nThe above warranty does not extend to any Product that is modified or altered by\nany party other than Company or other than pursuant to Company's\nrecommendations, is not maintained to Company's maintenance recommendations, is\noperated in a manner other than that specified by Company or is treated with\nabuse, negligence or other improper treatment (including, without limitation,\nuse outside the recommended environment). 3Com's sole remedy with respect to any\nwarranty or defect is as stated in this Section 4.7.\n\n             4.8 Company shall provide statistics on Product no problem found\n(NPF) returns on a quarterly basis. During the Warranty Period, Company shall\nwaive any NPF charges on in- warranty Products returned for repair. In the event\nthat (a) NPF returns of a Com21 Headend Product exceeds twenty-five percent\n(25%) of the calendar quarter in-warranty returns of such Com21 Headend Product\nor (b) NPF returns of a Com21 Modem Product exceeds ten percent (10%) of the\ncalendar quarter in-warranty returns of such Com21 Modem Product, both parties\nagree to work together to reduce the frequency of NPF returns of such Product.\n\n             4.9 \"Epidemic Failure\" shall mean substantial deviations in a\nProduct not modified by the Company or with the Company's authorization from the\nDesign Specifications which significantly impair the use of such Product\nexisting at the time of delivery but which are not reasonably discernible at\nthat time and which are evidenced by an identical. repetitive defect due to the\nsame cause and occurring in the same series of the Products.\n\n       In the case of an Epidemic Failure, Company's obligations shall be, as\nsoon as practical, to propose an action plan to fix the failure of any affected\nProducts and to implement this action plan upon 3Com's acceptance thereof. If\nthe action plan is not acceptable to 3Com, 3Com can require Company to repair or\nreplace, at Company's option, the affected Products. The repair or replacement\nshall be done at mutually agreed-upon location(s); provided, however, that costs\nof repair or replacement together with the shipping, transportation and other\ncosts of gathering and redisseminating the Products shall be borne by Company.\nThe parties agree to make commercially reasonable efforts to complete the repair\nor replacement of all of the affected Products within four (4) weeks after\nwritten notice of Epidemic Failure by 3Com to Company.\n\n             4.10 Company shall provide Authorized Resellers and End Users of\nthe Products with warranty, maintenance and support services as provided herein.\n\n\n\n                                        8\n\n     9\n\n\n\n\n       5.    SOFTWARE LICENSE\n\n             5.1 Subject to the terms and conditions of this Agreement, Company\ngrants to 3Com a nonexclusive, nontransferable, worldwide, royalty-free license\nto reproduce and distribute to 3Com's customers object code versions of the\nCom21 Software for the Products and any patches, Updates, Upgrades and new\nversions thereto.\n\n             5.2 Company will deliver each patch, Update, Upgrade or new version\nof the Com21 Software for the Product to 3Com in a mutually agreed upon format\nno later than the date that Company first makes such patch, Update, Upgrade or\nnew version available to Company's own customers, subject to the terms and\nconditions of Section 4.5.\n\n       6.    TESTING AND MODIFICATION OF THE PRODUCTS.\n\n             6.1 As soon as reasonably possible after receipt of 3Com's written\nrequest, Company shall submit [*] to 3Com at Company's MLOP Cost for\nCompatibility testing as provided in Section 6.2 below. At 3Com's request,\nCompany shall provide 3Com with up to [*] NFR receive modules for each sample at\nCompany's MLOP Cost.\n\n             6.2 3Com shall test such samples and notify Company in writing\nwithin sixty (60) days after receipt of the samples if the samples fail to\nmaterially comply with the Design Specifications or fail to be Compatible (each,\na \"Nonconformity\"). Failure to so notify Company within said sixty (60) days\nshall be deemed to be acceptance of such samples. Such notice shall describe the\nNonconformity in enough detail for the Company to reproduce such Nonconformity.\nWithin thirty (30) days after receipt of such notice of Nonconformity, Company\nshall modify the Products to correct such Nonconformity and shall promptly\nresubmit four (4) samples of the redesigned Product (if such modified Product is\na Com21 Headend Product, one (1) unit will have a fully-loaded configuration\n(i.e., all optional slots are filled with a combination of receive modules or\n10Base-T modules, as determined by 3Com) and three (3) units will have a\nconfiguration containing at least one (1) receive module) to 3Com at no cost for\nre-testing. If 3Com rejects such redesigned Products due to a Nonconformity, the\nparties shall repeat the procedures set forth up to two more times, if\nnecessary.\n\n             If after the third delivery of samples to 3Com as set forth above,\nthe samples contain a Nonconformity, then within ten (10) days of 3Com's written\nrequest, the parties will choose in -good faith an independent consulting firm\nacceptable to both parties (which acceptance will not be unreasonably withheld)\nto determine whether it is feasible to correct such Nonconformity. If the\nparties are unable to agree upon such independent consulting firm within such\nten (10) day period, Company shall choose an independent consulting firm\nreasonably acceptable to it within ten (10) days after the expiration of such\nten (10) day period. The parties agree that time is of the essence in the\nselection of such independent consulting firm. Unless otherwise agreed by the\n\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n                                        9\n\n\n\n     10\n\n\n\nparties, the consultant shall be certified as a professional engineer in\nelectrical engineering. Such consulting firm shall agree in writing to keep\nconfidential the information disclosed to it by Company and 3Com. For purposes\nof this Section 6.2, a consulting firm will be deemed to be \"Independent\" if it\ndoes not have a material interest (financial or otherwise) in either party, it\ndoes not have any ongoing work with either party and its fees are not contingent\non the results of such feasibility determination.\n\n             Such firm will be instructed to make its decision in writing within\nthirty (30) days of being retained. Each party will fully cooperate with the\nconsulting firm, will equally bear such firm's fees and expenses and will not\ntake any action against such firm relating to its review or decision. If the\nconsulting firm decides that the correction of the Nonconformity is feasible,\nthen 3Com may immediately terminate this Agreement for Company's default and\ndeclare that an Event of Escrow Release (as defined in Section 16.1 (Technology\nEscrow and Manufacturing License)) has occurred. If the consulting firm decides\nthat the correction of the Nonconformity is commercially not reasonably\nfeasible, then 3Com may terminate this Agreement but such termination shall not\nconstitute an Event of Escrow Release.\n\n             6.3 The parties agree to meet quarterly to discuss the states and\ndirection of Company's design and development of the Products and to assess how\n3Com could assist to accelerate and enhance such design and development. During\nsuch status meetings, 3Com shall report to Company regarding changes to the\ndesign and functionality of the Products requested or suggested by Large\nMultiple System Operators and Multiple System Operators. For any given change so\nrequested or suggested, if such change is requested or suggested by (i) one (1)\nLarge Multiple System Operator, or (ii) by a combined total of any five (5)\nLarge Multiple System Operators and\/or Multiple System Operators, Company and\n3Com will meet to discuss in good faith whether such change is reasonably\nfeasible to implement and when such change could be implemented. Each Product\ndeveloped as a result of such discussion shall be subject to Compatibility\ntesting as provided in Section 6.2 above.\n\n             6.4 Company at its expense shall implement any modifications\nnecessary to maintain the Compatibility of the Products. The design and manner\nof implementation of such modifications shall be in Company's sole discretion.\nCompany shall implement such modifications and [*] case may be, to 3Com at\nCompany's MLOP Cost for testing within sixty (60) days after making any mutually\nagreeable changes to the Design Specifications, or such other time frame as may\nbe mutually agreed in writing. Section 6.2 above shall apply to such modified\nProducts, or the applicable module of such modified Products.\n\n             6.5 Subject to Company's agreements with its subcontract\nmanufacturers, 3Com shall have the right to perform vendor audits of\nmanufacturing processes at Company's manufacturing and subcontract manufacturing\nfacilities upon reasonable advance written notice, and Company shall reasonably\ncooperate with 3Com in that regard. If an inspection or test is\n\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n                                       10\n\n     11\n\n\n\nmade on Company's premises, Company shall provide 3Com's inspectors with\nreasonable facilities and assistance. Each party will bear its own expenses with\nrespect to such audits.\n\n       7.    PRICE AND PAYMENT.\n\n             7.1 The price to 3Com for the Products are set forth in Exhibit B\n(Product and Price List). The prices for additional Products to be covered by\nthe Agreement shall be set forth in amendments to Exhibit B (Product and Price\nList). Company represents and warrants that, at the date of this Agreement, the\nprices set forth herein will not exceed those charged to any other customer of\nthe Company purchasing the Products or products similar or equivalent thereto in\nsimilar channels and in similar quantities. If at any time, Company offers lower\nprices to any other customer for such similar or equivalent products on similar\nterms or on terms less favorable to Company, taken as a whole, Company shall\nimmediately notify 3Com and offer such more favorable terms to 3Com effective as\nof the date such prices were offered to such other customer (provided 3Com\nadopts any and all minimum purchase commitments imposed upon such other\ncustomer). Any consideration provided to Company hereunder for Products\ndelivered to 3Com prior to such date shall be non-refundable and non-creditable.\nAny other changes to the price paid by 3Com for the Products and prices for\nUpgrades shall be mutually agreed upon in writing.\n\n             7.2 Payment for Products ordered pursuant to this Agreement shall\nbe net thirty (30) days after the last to occur of (a) receipt of the Product by\n3Com at the point of delivery, or (b) receipt by 3Com of Company's correct\ninvoice.\n\n             7.3 Company shall provide 3Com with thirty (30) days prior written\nnotice of any price increases. In the event of a price decrease, all 3Com orders\nnot yet shipped or in transit will be invoiced at the decreased price. Orders\nissued by 3Com after the date of the price decrease will be invoiced at the\ndecreased price. Company shall also provide price protection on Products in\n3Com's inventory purchased within the then current leadtime for such Products.\nIn the event of a price increase, the new prices will apply to all orders\naccepted by Company after the notice period. In the event of a price increase,\nupon 3Com's request, Company shall furnish 3Com with Company's written\ncost-based justification for the Products documenting the reason for such price\nincrease.\n\n             7.4 The prices for the Products are exclusive of all federal, state\nor local sales, use, excise, ad valorem, export, import or value-added taxes.\n3Com agrees to pay such taxes unless 3Com has provided Company with a valid\nexemption resale certificate, or unless 3Com is otherwise exempt. In addition,\n3Com shall pay all duties, import licenses, fees, tariffs and other similar\nexpenses incurred by Company in making international shipments hereunder.\n\n             7.5 Notwithstanding any provision of this Agreement, 3Com is free,\nin 3Com's sole discretion, to distribute the Products at any price.\n\n       8.       ORDERS AND RETURNS.\n\n             8.1 3Com shall provide Company with a twelve (12) month nonbinding,\nforward looking, rolling unit order forecast and update such forecast on a\nmonthly basis. Company shall\n\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n                                       11\n\n     12\n\n\n\nuse such forecast for internal planning requirements only. Such forecast does\nnot represent any commitment by 3Com to purchase Products. Further, Company\nshall treat all such forecasts as Confidential Information in accordance with\nSection 13 (Confidential Information) below.\n\n             8.2 Orders for Products must be in the form of written or\nelectronically transmitted purchase orders. Neither party shall have any\nobligation to the other based on an orally transmitted order. In the event of a\nconflict between the terms of this Agreement and the terms of a purchase order\nor purchase acknowledgment, the terms of this Agreement shall govern. No minimum\norder quantities shall be required. Invoices by Company shall be in duplicate\nand shall include purchase order number, line item number, part number,\ndescription of items, quantities, unit price, and extended totals. Payment shall\nnot be deemed to constitute acceptance.\n\n             8.3 3Com shall submit binding purchase orders to Company at least\nninety (90) days prior to the requested delivery date. ne parties agree to meet\nquarterly to discuss Company's efforts to reduce leadtimes for Products. 3Com's\norder shall automatically be deemed accepted upon receipt by Company. Company\nshall notify 3Com within two (2) business days after receipt of an order if\nCompany anticipates any problem in shipping the quantity of Product ordered on\nthe time schedule set forth below or in the order. Company shall ship all Com21\nModem Products ordered by 3Com within ninety (90) days of receipt of the order\nor as otherwise specified in the order. Company shall ship all Com21 Headend\nProducts ordered by 3Com within ninety (90) days of receipt of the order or as\notherwise specified in the order; provided however that if (a) the number of\nunits of Com21 Headend Products ordered for delivery in the month for which\ndelivery has been requested is greater than [*] the number of units of such\nProducts forecasted by 3Com for the month in which delivery has been requested\nand (b) such number of units ordered over the forecasted number is greater than\n[*], then Company shall be obligated only to use commercially reasonable efforts\nto ship such Com21 Headend Products ordered by 3Com within ninety (90) days of\nreceipt of order or as otherwise specified in the order.\n\n             8.4 The quantity of goods on the face of the purchase order must\nnot be exceeded without written approval from 3Com. 3Com will pay for maximum\nquantities ordered. Overshipments will be held at Company's risk and expense for\na reasonable time awaiting shipping instructions. Return shipping charges for\nexcess quantities will be at Company's expense.\n\n             8.5 3Com shall have right to defer the shipment of all or part of\nany order prior to the estimated shipping date by giving Company written notice\nof the revised planned shipment date, subject to the following conditions:\n\n                  (a) 3Com may delay delivery of any order, provided that the\nrescheduled delivery date occurs during the term of this Agreement. At 3Com's\nelection, 3Com may reschedule such order (i) at no charge to 3Com, in which case\nsuch rescheduled order may not be further rescheduled or canceled, or (ii) pay a\nrescheduling fee equal to the percentage of the purchase price of the\nrescheduled Products corresponding with the notice given before the scheduled\ndelivery date in accordance with the table set forth below, in which case such\nrescheduled order may be further rescheduled or canceled in accordance with this\nSection 8.5:\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n\n                                       12\n\n     13\n\n\n\n\n  \n  \n       Notice Before Scheduled Delivery Date       Rescheduling Charge\n       -------------------------------------       -------------------\n                                                           \n             0 to 30 days                                 12%\n             31 to 60 days                                 6%\n             61 to 90 days                                 2%\n\n  \n\n                  (b) 3Com may cancel the delivery of any order. 3Com shall pay\na cancellation charge equal to the percentage of the net purchase price of the\ncanceled Product(s) corresponding with the notice given before the scheduled\ndelivery date in accordance with the table set forth below.\n\n  \n       Notice Before Scheduled Delivery Date       Cancellation Charge\n       -------------------------------------       -------------------\n                                                           \n             0 to 30 days                                 20%\n             31 to 60 days                                10%\n             61 to 90 days                                 2%\n  \n\n             8.6 3Com shall have the right to request Company to expedite the\nshipping date of any order. Company shall use reasonable efforts to meet 3Com's\nnew expected shipping dates.\n\n             8.7 Company shall ship Products Ex Works [OPEN ISSUE - AWAITING\nCOM21 INPUT] Company's manufacturing facility and shall invoice upon shipment\n(provided however that 3Com shall not be required to bear any additional costs\nor fees associated with shipment from a non-domestic location). Payment shall be\nin U.S. Dollars. Any invoiced amount not paid when due shall be subject to a\nservice charge of one and one-half per-cent (1.5)% per month or if lower,the\nmaximum amount permitted by law, provided however, that Company shall allow 3Com\ntwenty (20) days after giving written notice of nonpayment to pay such amount\nbefore imposing a service charge.\n\n             8.8 All Products delivered shall be suitably packed, depending on\nthe method of shipment, in Company's standard shipping cartons, marked for\nshipment as specified in 3Com's purchase order, and delivered to 3Com or its\ncarrier agent Ex Works [OPEN ISSUE] Company's manufacturing plant, at which time\ntitle to such Products and risk of loss shall pass to 3Com (provided however\nthat 3Com shall not be required to bear any additional costs or fees associated\nwith shipment from a non-domestic location). All Product units shall be marked\nwith the Product's rev\/version and a 3Com-supplied label of 3Com part numbers on\nthe exterior in a visible location. 3Com shall select the carrier, unless\notherwise agreed to in writing by 3Com. All freight, insurance and other\nshipping expenses, including special packing expenses shall be paid by 3Com from\nthe Ex Works point (provided however that 3Com shall not be required to bear any\nadditional costs or fees associated with shipment from a nondomestic location).\n\n             8.9 3Com shall inspect all Products promptly upon the receipt\nthereof and may reject any Product that fails to conform to the specifications\nset forth in the Company's current brochure and specifications for the Product.\nAny Product not rejected within thirty (30) days after receipt of that Product\nby 3Com (\"Rejection Period\") shall be deemed accepted. To reject a Product, 3Com\nshall notify the Company within the Rejection Period in writing or fax of its\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n                                       13\n\n     14\n\n\n\nrejection and request a RMA number. The parties shall follow the RMA procedures\nset forth in Section 3.5 (Return Material Authorization) of Exhibit C (Support\nServices). 3Com shall pay the shipping charges for return of any Products found\nnot to be defective, otherwise Company shall be responsible for all shipping\ncharges associated with the return of defective Products.\n\n             8.10 Unless a Product is returned in accordance with the provisions\nof Company's warranty for the Product as set forth in Section 4.7, after the\nRejection Period 3Com may not return a Product to the Company for any reason\nwithout the Company's prior written consent. For any Product for which Company\ngives such consent, Company shall charge 3Com a restocking fee not to exceed\nfifteen percent (15%) of 3Com's purchase price for that Product and shall credit\nthe balance of the purchase price to 3Com's account. 3Com shall be responsible\nfor all shipping charges associated with the return of any Product pursuant to\nthis Section 8.10.\n\n             8.11 In the event of expiration or termination of this Agreement\nfor any reason except for cause by Company based on the material breach of this\nAgreement by 3Com, Company shall repurchase from 3Com within thirty (30) days\nall unsold Products in 3Com's Inventory purchased by 3Com within four (4) months\nprior to said expiration or termination for the price paid by 3Com for each\nunit. Except when this Agreement is terminated for cause by Company based on\nmaterial breach of this Agreement by 3Com, 3Com may at its election sell all or\na portion of the remaining Inventory in lieu of returning same to Company.\n\n             8.12 Company shall provide 3Com with at least six (6) months prior\nnotice prior to ceasing production of the Products. Within ninety (90) days\nafter the receipt of such notice, 3Com may place last time purchase orders with\nCompany for the Products, which orders may be scheduled for delivery in\naccordance with the terms of this Agreement for up to six (6) months following\nthe date production of the Products actually ceases. The foregoing shall not\neffect the ability of 3Com to continue to place regular orders in accordance\nwith the terms of this Agreement until the production of the Products has\nceased.\n\n       9.    TRADEMARKS.\n\n             9.1 Company hereby grants to 3Com a worldwide, nonexclusive,\nlimited license to use the Company trademarks, and the respective stylistic\nmarks listed on Exhibit F (Com21 Trademarks) to the Technology License and\nReseller Agreement and such other mutually agreeable Company marks\n(collectively, the \"Company Trademarks) in conjunction with the distribution of\nthe Products and in 3Com's advertising promotional and printed materials for the\nProducts. 3Com has provided to Company a copy of 3Com's Trademark Guidelines.\n3Com shall use the Company Trademarks in the manner specified in 3Com's\nTrademark Guidelines for proper usage of 3Com trademarks. 3Com's Trademark\nGuidelines may be modified from time to time by 3Com, in its sole discretion,\nwith written notice of such modification to Company. In the event Company\nimplements its own trademark Guidelines or policies, 3Com agrees to comply with\nsuch guidelines or policies. If compliance with a Company policy or guideline is\nnot reasonably feasible, 3Com shall notify Company in writing and propose an\nalternative procedure for Company's approval, which will not be unreasonably\ndenied. Upon Company's request, 3Com shall provide Company with free samples of\n3Com advertising, promotional and packaging materials for the Products for which\nsuch trademarks are used to ensure that\n\n\n\n                                       14\n\n     15\n\n\n\nCompany's quality standards are maintained.\n\n       10.   REPRESENTATIONS AND WARRANTIES.\n\n             10.1 Noninfringement. Company represents and warrants that it has\nfull power and authority to grant the fights granted hereunder. Company further\nrepresents and warrants to the best of its knowledge that at the time of initial\nshipment of the Products to 3Com neither the Products nor their content,\npromotion, advertisement, sale, distribution or other disposition will infringe\nor violate any copyright, patent, trade secret, trademark, right of publicity or\nprivacy or other personal or proprietary right of any third party. Company\nrepresents that, during the term of this Agreement, it will do all things\nnecessary to maintain its copyright protection in the Products. 3Com's sole\nremedy for a breach of the foregoing representations and warranties shall be the\nindemnity set forth in Section 12.1 below.\n\n             10.2 End User Warranty. Company shall include with each Product\nCompany's standard license agreement for such Product (\"End User License\").\nCompany warrants that each Product conforms to the End User License. Company\nshall provide 3Com with complete, packaged Products with documentation\ncontaining the Company End User License and all warranties, disclosures and\nrepresentations concerning the Products and their use. Company agrees that such\nwarranties, disclosures and representations of Company are extended to 3Com and\n3Com's Authorized Resellers and End Users.\n\n       11.   TECHNICAL SUPPORT.\n\n             11.1 Training and support services for the Products shall be\nprovided as set forth in Exhibit C (Support Services).\n\n       12.   INDEMNITY.\n\n             12.1 Company shall indemnify and hold harmless 3Com and its\ndirectors, officers, employees and agents against any and all claims, actions or\ndemands, alleging that the Products infringe any U.S., Canadian, European\nCommunity (EC) or Japanese copyrights, U.S., Canadian, EC or Japanese patents,\ntrade secrets or other proprietary rights of any third parties.\n\n                  (a) This obligation is contingent upon (i) 3Com giving prompt\nwritten notice to Company of any such claim, action or demand, (ii) 3Com\nallowing Company to control the defense and related settlement negotiations, and\n(iii) 3Com fully assisting, at Company's expense, in the defense and\/or\nsettlement.\n\n                  (b) Company shall have no obligation hereunder for any such\nclaims, actions or demands to the extent such claims, actions or demands result\nfrom:\n\n                        (i) the use of the Product combined with processes, \nmaterials, or products not supplied, created, developed or licensed by Company;\nor\n\n                        (ii) the modification or attempted modification of the\nProduct by parties\n\n\n\n                                       15\n\n     16\n\n\n\nother than Company or the use or distribution of such modified Product; or\n\n                        (iii) 3Com's continued alleged infringing activity after\nbeing notified thereof or after being informed of modifications that would have\navoided the infringement (but only if Company completely ceases the manufacture,\nuse and sales of the applicable Product(s), and the costs of implementing such\nmodifications shall be borne by Company);\n\n3Com will indemnify and hold Company and its directors, officers, employees and\nagents harmless against any claim, action or demand excluded from Company's\nindemnity obligation under this Section 12.1 (b). This obligation is contingent\nupon (i) Company giving prompt written notice to 3Com of any such claim, action\nor demand, (ii) Company allowing 3Com to control the defense and related\nsettlement negotiations, and (iii) Company fully assisting, at 3Com's expense,\nin the defense and\/or settlement.\n\n       Each party's obligation of indemnification under this Section 12.1 with\nrespect to each claim, action or demand of infringement of any third party EC or\nJapanese copyright, patent, trade secret or other proprietary right (\"Foreign\nIndemnity\") shall not exceed the greater of (a) [*] or (b) the amount in\naggregate paid to Com21 by 3Com hereunder during the twelve (12) month period\nprior to the date the notice of the claim, action or demand subject to such\nForeign Indemnity was tendered to the indemnifying party. If it reasonably\nappears that the total liability of the indemnifying party under the Foreign\nIndemnity may exceed or has exceeded the limit specified above or if the\nindemnifying party fails to honor its obligations hereunder for such Foreign\nIndemnity, then the indemnifying party shall relinquish the sole control of the\ndefense and\/or settlement with respect to the claims, actions or demands covered\nby such Foreign Indemnity and the other party shall have the right to obtain\nsole control, except that the indemnifying party may retain some partial control\nas reasonably agreed by the parties, to the extent the indemnifying party has\nhonored its obligations and still has liability under the Foreign Indemnity.\nSubject always to the limit set forth in the first sentence of this paragraph,\nthe indemnifying party shall continue to have the obligation to promptly pay the\ncosts and expenses of the defense of such a claim, including but not limited to\nreasonable attorneys' fees and all other related costs and expenses reasonably\nincurred by the other party in assuming and maintaining the defense. In such\nevent the other party shall not have the right to effect a settlement involving\na liability of the indemnifying party in excess of the liability limit described\nabove or involving a non-monetary settlement on the part of the indemnifying\nparty, without the prior written consent of the indemnifying party.\nRelinquishment of control shall in no event release the indemnifying party from\nany liability hereunder, subject always to the limit set forth in the first\nsentence of this paragraph. If the indemnifying party fails to so relinquish\ncontrol then the parties agree that the limits on the indemnifying party's\nliability under the Foreign Indemnity to the other party under this paragraph\nshall cease.\n\n       EXCEPT AS SET FORTH IN SECTION 10.1, THE FOREGOING IS IN LIEU OF ANY\nWARRANTIES OF NON-INFRINGEMENT, WHICH ARE HEREBY DISCLAIMED, AND STATES 3COM'S\nSOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS DESCRIBED IN THIS SECTION 12.1.\nTHE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT, WHICH ARE HEREBY\nDISCLAIMED AND STATES COMPANY'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n                                       16\n\n     17\n\n\n\nCLAIMS DESCRIBED IN THIS SECTION 12.1(B).\n\n             12.2 3Com shall indemnify and hold Company and its directors,\nofficers, employees and agents harmless against any and all claims, actions and\ndemands to the extent arising under this Agreement on account of 3Com's\nactivities. or those of its employees and agents (including, without limitation,\nAuthorized Resellers and systems integrators) including, without limitation,\nliabilities arising from acts (or omissions to act) of negligence or willful\nmisconduct or providing unauthorized representations or warranties (or failing\nto disclose all limitations on warranties and liabilities as set forth in\nCompany's End User Software License Agreement) to its customers. 3Com's\nobligation under this Section 12.2 is contingent upon (i) Company giving prompt\nwritten notice to 3Com of any such claim, action or demand, (ii) Company\nallowing 3Com to control the defense and related settlement negotiations and\n(iii) Company fully assisting, at 3Com's expense, in the defense and\/or\nsettlement.\n\n       Company shall indemnify and hold 3Com and its directors, officers,\nemployees and agents harmless against any and all claims, actions and demands to\nthe extent arising under this Agreement on account of Company's activities, or\nthose of its employees and agents (including, without limitation, Company's\nsuppliers) including, without limitation, liabilities arising from acts (or\nomissions to act) of negligence or willful misconduct. Company's obligation\nunder this Section 12.2 is contingent upon (i) 3Com giving prompt written notice\nto Company of any such claim, action or demand, (ii) 3Com allowing- Company to\ncontrol the defense and related settlement negotiations and (iii) 3Com fully\nassisting, at Company's expense, in the defense and\/or settlement.\n\n       13.   CONFIDENTIAL INFORMATION.\n\n             13.1 Confidential Information. Each party acknowledges that in the\ncourse of the performance of this Agreement, it may obtain the Confidential\nInformation of the other party. The Receiving Party (as defined in Section 1.11\n(Confidential Information)) shall, at all times, both during the term of this\nAgreement and thereafter for a period of [*], keep in confidence and trust all\nof the Disclosing Party's (as defined in Section 1.11 (Confidential\nInformation)) Confidential Information received by it. The Receiving Party shall\nnot use the Confidential Information of the Disclosing Party other than as\nexpressly permitted under the terms of this Agreement or by a separate written\nagreement. The Receiving Party shall take all reasonable steps to prevent\nunauthorized disclosure or use of the Disclosing Party's Confidential\nInformation and to prevent it from failing into the public domain or into the\npossession of unauthorized persons. The Receiving Party shall not disclose\nConfidential Information of the Disclosing Party to any person or entity other\nthan its officers, employees, consultants and subsidiaries who need access to\nsuch Confidential Information in order to effect the intent of this Agreement\nand who have entered into written confidentiality agreements which protect the\nConfidential Information of the Disclosing Party. The Receiving Party shall\nimmediately give notice to the Disclosing Party of any unauthorized use or\ndisclosure of Disclosing Party's Confidential Information. The Receiving Party\nagrees to assist the Disclosing Party to remedy such unauthorized use or\ndisclosure of its Confidential Information.\n\n             13.2 Exceptions to Confidential Information. The obligations set\nforth in Section\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n                                              17\n\n     18\n\n\n\n13.1 (Confidential Information) shall not apply to the extent that Confidential\nInformation includes information which (a) is already known to the Receiving\nParty at the time of disclosure, which knowledge the Receiving Party shall have\nthe burden of proving; (b) is, or, through no act or failure to act of the\nReceiving Party, becomes publicly known; (c) is received by the Receiving Party\nfrom a third party without restriction on disclosure; (d) is independently\ndeveloped by the Receiving Party without reference to the Confidential\nInformation of the Disclosing Party, which independent development the Receiving\nParty will have the burden of proving; (e) is approved for release by written\nauthorization of the Disclosing Party; or (f) is required to be disclosed by a\ngovernment agency to further the objectives of this Agreement or by a proper\norder of a court of competent jurisdiction; provided, however, that the\nReceiving Party will use its reasonable efforts to minimize such disclosure and\nwill consult with and assist the Disclosing Party in obtaining a protective\norder prior to such disclosure.\n\n             13.3 Remedies. Each party acknowledges and agrees that any breach\nof this Section 13 (Confidential Information) by a party's unauthorized use or\ndisclosure of the Disclosing Party's Confidential Information would cause\nirreparable injury to the other party for which monetary damages are not an\nadequate remedy. Accordingly, in addition to other available remedies, the\nnon-breaching party will be entitled to obtain appropriate injunctive relief and\nother equitable remedies in the event of such breach.\n\n       14. PUBLICITY. Neither party shall disclose the terms of this Agreement\nwithout the prior approval of the other party, except that a party may disclose\nthe terms of this Agreement where required by law, provided that such party\nmakes every reasonable effort to obtain confidential treatment or similar\nprotection to the fullest extent available to avoid public disclosure of the\nterms of this Agreement. A party required by law to make disclosure of the terms\nof this Agreement will promptly notify the other party and permit the other\nparty to review and participate in the application process seeking confidential\ntreatment.\n\n       15.   TERM AND TERMINATION.\n\n             15.1 Term. The Agreement shall commence on the Effective Date and\nshall continue for five (5) years thereafter unless terminated sooner under the\nprovisions set forth herein. Thereafter, this Agreement shall automatically be\nrenewed for successive one (1) year terms, unless 3Com requests in writing at\nleast thirty (30) days prior to the end of the then current term that this\nAgreement not be so renewed; provided, however, that upon the occurrence of an\nevent of Escrow Release (as defined in Section 16 (Technology Escrow and\nManufacturing License), Company may not object to the renewal of this Agreement\nas provided above.\n\n             15.2 Termination for Cause. This Agreement may be terminated by\neither party for cause immediately by written notice to the other upon the\noccurrence of any of the following events:\n\n                  (a) if the other party ceases to do business or otherwise\nterminates its business operations for more than thirty (30) consecutive days;\nor\n\n                  (b) if the other party materially breaches any material\nprovision of this\n\n\n\n                                       18\n\n     19\n\n\n\nAgreement and fails to substantially cure such breach within thirty (30) days of\nwritten notice describing the breach (twenty (20) days in the case of a breach\nof a payment obligation); provided however that a breach of the obligations set\nforth in Section 13 (Confidentiality) or Section 3.2 shall be grounds for\nimmediate termination by the non-breaching party; or\n\n                  (c) if the other becomes insolvent or seeks protection under\nany bankruptcy, receivership, creditors arrangement or comparable proceeding, or\nif such proceeding is instituted against the other and is not dismissed within\nninety (90) days; or\n\n                  (d) if Company ceases the manufacture and distribution of the\nProducts.\n\n             15.3 Survival. The parties' obligations under Section 2.4, Section\n4.7, Section 7 (Price and Payment), Section 8.9, Section 8.11, Section 10\n(Representations and Warranties), Section 11 (Support Services), Section 12\n(Indemnity), Section 13 (Confidential Information), Section 15.5, Section 18\n(Limitation of Liability), Section 19 (Miscellaneous) and obligations accrued\nduring the term of this Agreement to make payments shall survive the termination\nof the Agreement.\n\n             15.4 Upon expiration or termination of this Agreement by Company\npursuant to Section 15.2 (Termination for Cause) above, all licenses granted to\n3Com hereunder shall immediately terminate and 3Com shall discontinue all\ndistribution of the Products and use of the Marks; provided, 3Com may retain a\nreasonable number of copies of the Com21 Software in object code form to be used\nsolely for support of its installed base of Products as of the date of\ntermination and 3Com shall have a limited license only to the extent necessary\nfor 3Com to support the installed base of Products.\n\n             15.5 Each party shall, within fifteen (15) days of the effective\ndate of any termination of this Agreement, return to the other or destroy all\nfull or partial copies, in whatever media, of all the other party's Confidential\nInformation and any and all other materials in such party's possession which had\nbeen furnished to it by the other party pursuant to this Agreement, and such\nparty shall warrant in writing to the other within thirty (30) days after\ntermination or expiration that all such materials have been returned or\ndestroyed pursuant to this Section 15.5.\n\n             15.6 Upon an End User acquiring a copy of the Com21 Software\npursuant to an End User License Agreement, the End User shall be entitled to use\nthat copy of the Com21 Software. subject to the terms and conditions of the End\nUser License Agreement. The rights of End Users are independent of this\nAgreement and will survive any termination of this Agreement for any reason\nwhatsoever.\n\n       16.   TECHNOLOGY ESCROW AND MANUFACTURING LICENSE.\n\n             16.1 Technology Escrow and Manufacturing License. Within ten (10)\ndays after the first shipment of Products from Company to 3Com, Company shall\nplace the Technology Documentation for all versions of the Com21 Headend\nProducts initially listed on Exhibit B (Product and Price List) in a mutually\nagreed upon escrow account pursuant to the Escrow Agreement attached hereto as\nExhibit D (Escrow Agreement). Thereafter, within ten (10) days\n\n\n\n                                       19\n\n     20\n\n\n\nafter the execution of any amendments to Exhibit B (Product and Price List) to\nadd additional updates or versions of the Com21 Headend Products or to add new\nCom21 Headend Products. Company shall place the Technology Documentation for\nsuch Com21 Headend Products into such escrow account. 3Com shall pay any and all\nannual fees, deposit fees, reporting fees and costs associated with such escrow,\nhowever, Company will bear its own cost of creating the deposit and all updates\nthereto. Company hereby grants to 3Com a worldwide, non-exclusive,\nnon-transferable, non-sublicensable, perpetual, irrevocable license to\nmanufacture, have manufactured, import. sell, repair, use, modify (but only to\nmake error corrections or make Compatible) reproduce and, with respect to Com21\nHeadend Software, distribute error corrections and modifications made by 3Com in\nobject code form only, of the Com21 Headend Products under all registered and\nunregistered copyrights, patents, trade secrets, mask works, designs, drawings,\nspecifications, vendor lists and all other data and other information owned by\nCompany or to which Company has the right to grant sublicenses with respect to\nthe design, manufacture, maintenance and use of the Com21 Headend Products and\nany other intellectual property rights associated therewith, and to prepare and\nhave prepared derivative works based thereon (but only to make error corrections\nor make Compatible), and to use source code for the software contained in or\nassociated with the Com21 Headend Products to make and have made, use. sell,\nmodify (but only to make error corrections or make Compatible), reproduce, and\nwith respect to Com21 Headend Software, distribute error corrections and\nmodifications made by 3Com in object code form only and prepare and have\nprepared derivative works based on the Com21 Headend Products (but only to make\nerror corrections or make Compatible), and to grant sublicenses to third parties\nas to any or all of the rights granted to 3Com under this license and to have\nimmediate and complete access to all embodiments of the Seller Technology\notherwise held by Company, only in the event (i) Company becomes insolvent,\ngenerally fails to pay or admits in writing its inability to pay its debts as\nthey become due, (ii) Company applies for or consents to the appointment of a\ntrustee, receiver or other custodian or makes a general assignment for the\nbenefit of its creditors, (iii) this Agreement is not assumed in its entirety\npursuant to Section 365 of Title 11 of the United States Bankruptcy Code and not\ndismissed within ninety (90) days of the date of the filing of any bankruptcy\nproceeding or if the bankruptcy trustee rejects this Agreement prior to the\nexpiration of said ninety (90) day period, (iv) Company takes any corporate or\nother action to authorize, or in furtherance of, any of the foregoing, (v) any\nevent occurs which would permit 3Com to terminate this Agreement pursuant to\nSection 15.2 (Termination for Cause) except as described in Section 2.4\n(Sustaining Engineering\/Error Correction) of Exhibit C (Support Services) of\nthis Agreement or to terminate the Technology License and Reseller Agreement\n(except as described in Section 5.3 of such agreement (Acceptance) or if 3Com\nelects not to renew such agreement in accordance with Section 17.1 (Term) of the\nTechnology License and Reseller Agreement), (vi) Company ceases, or gives notice\nthat it intends to cease manufacturing and distributing the Com21 Headend\nProducts or (vii) the Company is unable to meet the reasonable supply\nrequirements of Com21 Headend Products of 3Com's customers. For purposes of this\nSection 16.1 (Technology Escrow and Manufacturing License), Company shall be\ndeemed to be unable to meet the reasonable supply requirements of 3Com's\ncustomers if [*]; provided that such delays in shipment are not the\nresult of the occurrence of a force majeure condition as specified in Section 17\n(Force Majeure) that has lasted for less than one hundred thirty-five (135) days\nor is not due to any delay, failure to perform or interference by 3Com. In\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n                                       20\n\n     21\n\n\n\norder for Company not to be deemed unable to meet such reasonable supply\nrequirements, Company must fulfill orders on a \"first-in first-out\" (FIFO) basis\n(e.g., orders from Company's customers are fulfilled in the order they are\nreceived) The occurrence of any of the foregoing shall constitute an \"Event of\nEscrow Release\" for purposes of this Agreement.\n\n             16.2 Royalties. In the event that, pursuant to an Event of Escrow\nRelease, the manufacturing license granted by Com21 to 3Com pursuant to Section\n16.1 (Technology Escrow and Manufacturing License) (the \"Manufacturing License\")\nbecomes effective 3Com shall pay Com21 a royalty of [*] of 3Com's MLOP Cost of\nthe units of the Com21 Headend Products manufactured by or for 3Com pursuant to\nthe Manufacturing License, provided, however, that 3Com shall not owe any\nroyalties on (a) demonstration units (up to eight (8) units), beta units,\ninternal use test units, returned units or for Updates to units for which a\nroyalty has already been paid or (b) the first seventy-five (75) units of the\nCom21 Headend Products manufactured by or for 3Com not included within the units\ndescribed in clause (a).\n\n       Royalties shall be paid on a quarterly basis and shall be payable within\nforty-five (45) days from the end of each 3Com fiscal quarter, Such payments\nshall be accompanied by quarterly reports listing the quantity of Com21 Headend\nProduct units manufactured by or for 3Com and 3Com's MLOP cost of such units\nduring the applicable fiscal quarter.\n\n       17.   FORCE MAJEURE.\n\n             17.1 Except of the payment of money and the obligation of\nconfidentiality described in Section 13 (Confidential Information), neither\nparty will be liable for any failure or delay beyond its control in performance\nunder this Agreement due to fire, explosion, earthquake, storm, flood or other\nweather, unavailability of necessary utilities or raw materials, war,\ninsurrection, riot, act of God or the public enemy, law, act, order, export\ncontrol regulation, proclamation, decree, regulation, ordinance, or instructions\nof Government or other public authorities, strikes, lockouts or other labor\ndisputes or shortages or inability to obtain material or equipment, compliance\nwith laws or regulation (including, without limitation, those related to\ninfringement) or judgment or decree of a court of competent jurisdiction (not\narising out of breach by such party of this Agreement). In the event of the\nhappening of such a cause, the party whose performance is so affected will give\nprompt, written notice to the other party, stating the period of time the same\nis expected to continue. The affected party will use its reasonable efforts to\nmitigate the effect of the event giving rise to the failure or delay in\nperformance.\n\n       18.   LIMITATION OF LIABILITY,\n\n             18.1 EXCEPT FOR A BREACH OF SECTION 13 (CONFIDENTIALITY) AND EXCEPT\nAS OTHERWISE PROVIDED IN SECTION 12.1 ABOVE, NEITHER PARTY SHALL HAVE ANY\nLIABILITY OF ANY KIND OR FOR LOSS OF REVENUE OR LOSS OF BUSINESS OR OTHER\nFINANCIAL LOSS OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR\nTECHNOLOGY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING\nWITHOUT LIMITATION IN CONNECTION WITH THE MANUFACTURE, SALE, INSTALLATION, USE,\nPERFORMANCE, FAILURE OR CORRUPTION OF THE COM21 PRODUCT(S) LICENSED\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n\n                                       21\n\n     22\n\n\n\nHEREUNDER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT\n(INCLUDING NEGLIGENCE) STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY\nREPRESENTATIVE OF A PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH\nDAMAGES.\n\n             18.2 Notwithstanding Section 18.1, in the event Company breaches\nits obligations to sell Products to 3Com under this Agreement, Company agrees\nthat it shall use its best efforts to have its other authorized resellers of\nsuch Products sell to 3Com such number of units of the Products that Company\nfailed to sell to 3Com. Company agrees that the limitation of cover remedy\ndescribed in Section 18.1 shall not apply in the event 3Com procures substitute\nProducts from such other resellers.\n\n       19.   MISCELLANEOUS.\n\n             19.1 Notices. Any notice provided for or permitted under this\nAgreement will be treated as having been given when (a) delivered personally,\n(b) sent by confirmed telex or telecopy, (c) sent by commercial overnight\ncourier with written verification of receipt, or (d) mailed postage prepaid by\ncertified or registered mail, return receipt requested, to the party to be\nnotified, at the address set forth below, or at such other place of which the\nother party has been notified in accordance with the provisions of this Section\n19.1 (Notices).\n\n             If to 3Com:3Com Corporation\n                        5400 Bayfront Plaza\n                        Santa Clara, CA 95052\n                        Telecopy: (408) 764-8955\n                        Attention:  Interface Products Group Purchasing Manager\n\n           with a copy to the attention of 3Com's General Counsel at the address\n           above, and a telecopy number of (408) 764-6434.\n\n        If to Company:  Com21, Inc.\n                        750 Tasman Drive\n                        Milpitas, CA 95035\n                        Telecopy: (408) 953-9299\n                        Attention: President\n\n       with a copy to:  Brobeck, Phleger &amp; Harrison LLP\n                        Two Embarcadero Place\n                        2200 Geng Road\n                        Palo Alto, CA 94303\n                        Telecopy: (415) 496-2885\n                        Attention: Edward M. Leonard, Esq.\n\nSuch notice will be treated as having been received upon the earlier of actual\nreceipt or five (5) days after posting.\n\n\n\n\n                                       22\n\n     23\n\n\n\n             19.2 Assignment. Neither party may assign, voluntarily, by\noperation of law or otherwise, any rights or delegate any duties under this\nAgreement (other than the right to receive payments) without the other party's\nprior written consent, and any attempt to do so without such consent will be\nvoid, except that an assignment to an acquiror of all or substantially all of a\nparty's stock, assets or business shall not require the prior written consent of\nthe other party. This Agreement will bind and inure to the benefit of the\nparties and their respective successors and permitted assigns.\n\n             19.3 Modification. This Agreement cannot be amended or modified,\nexcept by written instrument executed by the duly authorized representatives of\nboth parties.\n\n             19.4 Independent Contractors. The parties are independent\ncontractors of each other and neither has nor shall have any power, right or\nauthority to bind the other, or to assume or to create any obligation or\nresponsibility, express or implied, on behalf of the other. Nothing contained in\nthis Agreement shall be construed as establishing 3Com and Company as partners\nor joint venturers, or as creating the relationship of employer and employee,\nmaster and servant, or principal and agent between them.\n\n             19.5 Headings. The printed titles given to the clauses of this\nAgreement are inserted for convenience only and do not form part of this\nAgreement and shall not affect its interpretation.\n\n             19.6 Waiver. A waiver of any default hereunder or of any of the\nterms and conditions of this Agreement shall not be deemed to be a continuing\nwaiver or a waiver of any other default or of any other term or condition, but\nshall apply solely to the instance to which such waiver is directed. The\nexercise of any right or remedy provided in this Agreement shall be without\nprejudice to the right to exercise any other fight or remedy provided by law or\nequity, except as expressly limited by this Agreement.\n\n             19.7 Severability. If any provision of this Agreement shall be held\nto be invalid, illegal or unenforceable, then. to the extent permitted by law,\nthe validity, legality and enforceability of the remaining provisions hereof\nshall not in any way be affected or impaired thereby.\n\n             19.8 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 EXCLUDE IN ITS\nENTIRETY THE APPLICATION TO THIS AGREEMENT OF THE UNITED NATIONS CONVENTION ON\nCONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.\n\n             19.9 Choice of Forum. The sole jurisdiction and venue for actions\nrelated to the subject matter of this Agreement shall be the United States\nDistrict Court and the Courts for the State of California, Santa Clara County\nand the parties hereby submit to the jurisdiction of such courts and waive any\nand all venue objections.\n\n\n\n\n                                       23\n\n     24\n\n\n\n              19.10 Export Controls. 3Com shall comply with afl applicable\nexport laws, restrictions, national security controls and regulations of the\nUnited States and all other applicable foreign agencies and authorities, and\nshall not export or re-export, or allow the export or re-export of any Com21\nProduct or any copy, portion or direct Product thereof (i) in violation of any\nsuch restrictions, laws or regulations, or (ii) without all required\nauthorizations to Cuba. Libya, North Korea, Iran, Iraq or Rwanda or to any Group\nD:1 or E:2 country (or any national of such country) specified in the then\ncurrent Supplement No. I to part 740 of the U.S. Export Administration\nRegulations (or any successor supplement or regulations); 3Com shall obtain any\nnecessary licenses and\/or exemptions with respect from the U.S. of all materials\nor items deliverable by Company and upon request by Company shall demonstrate to\nCompany compliance with all such applicable laws and regulations prior to\ndelivery thereof by Company.\n\n             19.11 Attorneys' Fees. Any action to enforce this Agreement, the\nprevailing party shall be awarded all court costs and reasonable attorneys' fees\nincurred, including such costs and attorneys' fees incurred in enforcing and\ncollecting the judgment.\n\n             19.12 Entire Agreement. This Agreement, the Technology License and\nReseller Agreement and the Exhibits attached hereto and thereto (except for\nExhibit G (Technology Escrow and Manufacturing License) of the Technology\nLicense and Reseller Agreement) constitute the entire agreement between the\nparties with respect to the subject matter hereof and supersede all previous or\nsimultaneous proposals, negotiations, representations, commitments, writings and\nall other communications between the parties, both oral and written. This\nAgreement may not be released, discharged, changed or modified except by an\ninstrument in writing signed by a duly authorized representative of each of the\nparties. The terms of this Agreement shall prevail in the event that there shall\nbe any variance with the terms and conditions of any invoice, acknowledgment or\nother such document submitted by Company or any purchase order, acknowledgment\nor any other such document submitted by 3Com.\n\n             19.13 Allocation of Risk. The sections on limitation of liability,\nwarranty and warranty disclaimer allocate the risks in the Agreement between the\nparties. This allocation is an essential element of the basis of bargain between\nthe parties.\n\n             19.14 Construction of Agreement. This Agreement has been negotiated\nby the respective parties hereto and their attorneys and the language hereof\nshall not be construed for or against any party.\n\n             19.15 Counterparts. This Agreement may be signed in two\ncounterparts which together shall form a single agreement as if both parties had\nexecuted the same document.\n\n\n\n\n                                       24\n\n     25\n\n\n\n       IN WITNESS WHEREOF, the parties have caused their duly authorized\nofficers to execute this Agreement.\n\nCOMPANY:                                3COM:               \n                                                            \nCOM21, INC.                             3COM CORPORATION    \n                                                            \n                                                            \n-------------------------------         -------------------------------\nName                                    Name                \n\n                                                            \n-------------------------------         -------------------------------\nTitle                                   Title               \n                                                            \nJuly 30, 1997                           July 30, 1997       \n-------------------------------         -------------------------------\nDate                                    Date                \n                                        \n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n                                       25\n\n     26\n\n\n\n\n                                    EXHIBIT A\n\n                              DESIGN SPECIFICATIONS\n\n       [to be attached prior to date of first shipment of Products by Company to\n        3Com; Specs for Products shipped already to be provided by Com21 prior\n        to execution]\n\n\n\n\n\n\n\n\n\n                                       26\n\n     27\n\n\n\n                                    EXHIBIT B\n\n                             PRODUCT AND PRICE LIST\n\n\n\n\n\n                            CHANNEL PARTNER DISCOUNTS\n\n\n\n\n                                  SECTION FOUR\n\n\n\n\n\n\n\n\n\n\n\n\n\n                                       27\n\n     28\n\n\n\n                                                                    Confidential\n\n\n                           3COM ADDITIONS TO EXHIBIT B\n\n                        COM21 PRODUCTS EXTENDED WARRANTY\n\n\nService Agreement Packages:\n\n       Annual (Standalone) Software Maintenance Agreement\n\nSoftware Maintenance\n\n       The annual service agreement can also be bundled with a software\n       maintenance agreement which provides upgrades to major and maintenance\n       software releases: Price:First Year SW maintenance at time of NMAPS\n       purchase: [*]\n\n                  If purchased within 12 months of time of NMAPS purchase:\n                  [*]\n\n                  If purchased after 12 months of NMAPS purchase and the release\n                  of the Com21 Software held by the End User is the then current\n                  release or the immediately preceding release: [*]\n\n                  If, however after 12 months, the End User has an older version\n                  of the Com21 Software that is two or greater versions behind\n                  the then current release, the End User must also purchase the\n                  then current release at full price.\n\nPRODUCTS COVERED:\n\n       NMAPS\n       System Software\n\nTYPICAL SCENARIOS:SCENARIOS:\n\n       Maintenance Release (3.X to 3.X+1)\n       Software Maintenance contract customers automatically receive upgrade at\n       no additional charge. New customers pay list price of software and\n       receive current rev (3.X + 1)\n\n       Major Release (3.X to 4.0)\n       New customers pay full list price for and are offered the choice of\n       purchasing a software maintenance contract.\n\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n\n                                       28\n\n     29\n\n\n\n                                                                    Confidential\n\n\n\n       NOTE: Customer Service will always be able to upgrade a customer for free\n       if they deem necessary.\n\nDuration of Contract\n\n       Maintenance contracts last for 12 months from the time of purchase. These\n       will not be dependent on the calendar year. Renewal notification shall be\n       generated by order administration sixty (60) days notice and sent to\n       sales for their follow-up.\n\n\n\n\n\n\n\n\n                                       29\n\n     30\n\n\n\n                                    EXHIBIT C\n\n                                SUPPORT SERVICES\n\n1.     Definitions\n\n       Authorized Caller. \"Authorized Caller\" means a person or persons\ndesignated by 3Com as the technical support interface for the Products.\n\n       Designated Support Engineer. \"Designated Support Engineer\" means a person\nor persons designated by Company as the technical support interface for\nafter-hour assistance, if different from \"Primary and Secondary Contacts.\"\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\nCompany's Design Specifications, End User documentation, or other related\ndocumentation, including without limitation any functional specifications or\nother engineering documentation for the Product, or commonly accepted operating\nprinciples as defined by industry standards. Errors are classified as follows:\n\n             Severity 1: Major Service Interruption. The problem causes\nsignificant loss of user data or work time. Performance degradation is such that\nMajor Functions cannot be completed. The customer cannot accomplish meaningful\nwork and there is no customer acceptable Workaround available.\n\n             Severity 2: Significant Service Interruption. The problem causes\ndifficulty in the execution of a Minor Function. Perceptible performance\ndegradation may occur but the function completes after a period of time\nacceptable to the customer. Customer acceptable Workaround available.\n\n             Severity 3: Other Non-Conformance to Specification. No loss of\nfunction, but impairs some operations. Problem causes a minor inconveniences\nsuch as cosmetic problem, awkward interface, or minor syntax discrepancy. This\nincludes documentation errors.\n\n             Major Function. \"Major Function\" means a function that is\nfrequently used or represents the essential functions for which Product is\npurchased or used by a customer or is necessary for approval or sale by\nGovernment agencies or applicable standards.\n\n             Minor Function. \"Minor Function\" means a function that is not\nfrequently used or does not represent the essential functions for which the\nProduct is purchased or used by a customer or is not necessary for approval or\nsale by government agencies or applicable standards.\n\n             Primary and Secondary Contacts. \"Primary and Secondary Contacts\"\nmeans the persons assigned by Company as the technical support interface for the\nProducts.\n\n\n\n\n                                       30\n\n     31\n\n\n\n             Problem Priorities. \"Problem Priorities\" classify the criticality\nof a problem at a customer site. Problem Priorities are assigned at the time of\n3Com's initial contact with Company. Problem Priorities may be changed based\nupon new information or customer situation. Problem Priorities are defined the\nsame as Errors, but refer the classification of the incident, not any resulting\nError which may be identified during the resolution of the incident.\n\n             Severity 1: Major Service Interruption. The problem causes\nsignificant loss of user data or work time. Performance degradation is such that\nmajor functions cannot be completed. The customer cannot accomplish meaningful\nwork and there is no customer acceptable workaround available.\n\n             Severity 2: Significant Service Interruption. The problem causes\ndifficulty in the execution of a minor function. Perceptible performance\ndegradation may occur but the function completes after a period of time\nacceptable to the customer. Customer acceptable workaround available.\n\n             Severity 3: Other Non-Conformance to Specification. No loss of\nfunction, but impairs some operations. Problem causes a minor inconveniences\nsuch as cosmetic problem, awkward interface, or minor syntax discrepancy.\nDocumentation errors are classified as Severity 3 incidents.\n\n             Technical Support Levels. \"Level\" means a certain class of service\nprovided to Authorized Resellers and End Users. Definitions are as follows:\n\n             Level One: Technical support staff is competent to answer technical\ninquiries regarding Products, perform remedial hardware determination, and\nProduct installation and configuration support.\n\n             Level Two: Technical support staff is competent to identify the\ncause of a problem, replicate the problem at either the end-user site or 3Com\ntest facility, and implement a solution for a problem which is not the result of\na Product Error. In the case of a Product Error, the technical staff is\ncompetent to identify the source of the Error, create a reproducible test case,\nand document the details of the Error for escalation to Company.\n\n             Level Three: Staff is competent to identify a Product Error and\nimplement a solution through a Product change in either hardware or software.\n\n             Workaround. A \"Workaround\" is a feasible change in operating\nprocedures whereby an End User can avoid any deleterious effects of an Error.\n\n       2.    Technical Support\n\n             2.1 Support Issues. 3Com is responsible for providing Level One and\nLevel Two pre-sales and post-sales support services to its Authorized Resellers\nand End Users. Company shall provide Level Three back-up technical support to\n3Com, and shall make available to 3Com support via telephone, FAX or E-Mail to\n3Com's Authorized Caller(s).\n\n\n\n                                       31\n\n     32\n\n\n\nCompany's support will provide telephone acknowledgment of 3Com's support calls\nwithin (1) hour on a twenty-four (24) hour per day, seven (7) days per week,\nthree hundred and sixty-five (365) days per year basis provided that 3Com calls\nthe Primary or Secondary Contact or Designated Support Engineer. 3Com will\nreceive most favored class of priority from Company, and will be assigned\nPrimary and Secondary Contacts. This support shall be provided at 3Com's\nFCS\/First Customer Ship for one (1) year at no cost to 3Com. Thereafter, 3Com\nhas the option to renew such support services on a quarterly basis during the\nterm of this Agreement and for each of the next four (4) years thereafter, at a\nquarterly cost to be set forth in Exhibit B (Product and Price List), which cost\nshall not exceed Company's price to other customers for such maintenance and\nsupport, less Company's most favored discount therefor. 3Com is under no\nobligation to renew all or any portion of such support and may cancel all or any\nportion of such support at any time and receive a prorated refund of any prepaid\nfees. Such support shall be automatically renewed unless 3Com gives written\nnotice of termination of support at least thirty (30) days prior to the end of\nthe current quarter.\n\n             The Authorized Callers will be the primary contacts between 3Com's\nand Company's technical support centers. 3Com will be permitted to register up\nto six Authorized Callers. 3Com will provide a list of Authorized Callers\nincluding names, address, phone numbers, and internet e-mail address. This list\nwill be reviewed quarterly and updated as required. All Authorized Callers shall\nreceive training as set forth in section 4.\n\n             Company will provide a list of Designated Support Engineers; this\nlist will be reviewed quarterly and updated as required.\n\n       The Primary and Secondary Contacts will be the contacts between Company's\nand 3Com's Authorized Callers. Company will provide a list of Primary and\nSecondary Contacts; this list will be reviewed quarterly and updated as\nrequired.\n\n             2.2 Resolution of Support Issues. 3Com shall reasonably attempt to\nresolve Level One and Level Two customer support requirements for the Products\nprior to contacting Company. Company will provide Level Three support to 3Com.\nIn the event that 3Com cannot successfully resolve customer issues within a\nreasonable period of time, upon request from 3Com Company shall use commercially\nreasonable efforts to provide Level Two technical support to ensure that 3Com\nprovides prompt resolution of issues regarding Products. Company will not,\nregarding the Products, contact or provide direct support to 3Com's customers\npursuant to this Agreement without 3Com's prior approval. Company will use\ncommercially reasonable efforts to provide an initial response acknowledging\nreceipt of the support request to all 3Com support requires within one (1) hour\nand 3Com and Company will agree, in good faith, what additional information\nand\/or documentation will be required for resolution. If a particular problem is\nnot resolved or identified as an \"Error\" within two (2) business days following\nthe initial call to Company, technical support managers and engineers for each\nparty will work in good faith to devise and carry out a plan that will provide a\ntimely and satisfactory resolution. Company shall work with 3Com in attempting\nto reproduce any such problem.\n\n\n\n\n                                       32\n\n     33\n\n\n\n             2.3 Emergency Technical Support. For End User or Authorized\nReseller problems deemed by 3Com to be a Severity I emergency, Company will use\nits commercially reasonable efforts to address and resolve the problems as\nquickly as possible.\n\n       Except as set forth in this Exhibit C (Support Services), Company shall\nhave no responsibility pursuant to this Agreement for providing technical\nsupport directly to 3Com's Authorized Resellers and End Users. Such technical\nsupport shall be provided by 3Com and\/or its Authorized Resellers in accordance\nwith 3Com's usual customer support procedures. However, in the event that an End\nUser requires emergency, on-site support that would be significantly facilitated\nby Company's assistance and such support is requested by 3Com, Company agrees to\nuse its commercially reasonable efforts to provide such emergency support. 3Com\nwill attempt to manage the situation, such that Company's assistance will be\ntransparent to the customer and shall reimburse Company for its time at the\nprice set forth in Exhibit B (Product List and Prices), plus other reasonable\nexpenses. In situations where the site visit was precipitated by a known (but\nunresolved) or acknowledged Company problem, 3Com will not reimburse for labor\nor expenses. Problems regarded as emergencies include, but shall not be limited\nto, problems resulting from Errors. Problem resolution shall be governed by the\nSustaining Engineering\/ Error Correction section below.\n\n             2.4 Sustaining Engineering\/Error Correction. 3Com and Company shall\npromptly agree in good faith to provide any information and\/or documentation\nwhich may be required to permit Company to identify and resolve Product Errors.\nThe Error correction period begins after Company (a) has enough information to\nprofile the Error and (b) can recreate the Error or has access to a facility\nwhere the Error can be recreated. Company agrees to respond to identified Errors\nbased on the following time-table:\n\n       Severity 1 Errors. Company shall use its commercially reasonable efforts\n       to resolve or reduce the severity via workaround and\/or patch within\n       forty-eight (48) hours of receipt of notice of such Error. Company shall\n       provide its action plan within twenty-four (24) hours, and regular status\n       updates. Final resolution shall be identified per action plan. 3Com and\n       Company problem managers shall review Error status after forty-eight (48)\n       hours.\n\n       Severity 2 Errors. Company shall use its commercially reasonable efforts\n       to resolve or reduce the severity via workaround and\/or patch within five\n       (5) working days of receipt of notice of such Error. Company shall\n       provide an action plan within seventy-two (72) hours, and regular status\n       updates. 3Com and Company problem managers shall review after five (5)\n       working days. When required, a final engineering solution shall be\n       identified per action plan.\n\n       Severity 3 Errors. Company shall use its commercially reasonable efforts\n       to acknowledge the Error within fifteen (15) working days of receipt of\n       notice. Acknowledgment will convey entry into Company's Error or Product\n       Requirements Database. Final engineering resolution will be determined\n       and scheduled through mutual agreement between 3Com and Company's\n       Engineering and Marketing management.\n\n\n\n                                       33\n\n     34\n\n\n\n\n       The prescribed Error correction periods above may be extended as mutually\nagreed, e.g., if resolution of problem requires timely hardware certification or\ntest, or if resolution represents significant risk to the Major Functions.\n\n       Provided that Company is using its commercially reasonable efforts to\nresolve any such Error, 3Com agrees that a breach of this provision by Company\nis insufficient to allow 3Com to terminate the Agreement and shall not be an\nEvent of Escrow Release; provided, however, 3Com shall be entitled to pursue any\nother remedy available to 3Com, including, but not limited to seeking damages\nfor Company's breach.\n\n       Company shall provide 3Com, as a common business practice, a mechanism by\nwhich 3Com may receive a monthly detail list of the status of all Errors\nreported and\/or resolved. This list shall contain known problems, Workarounds\nlist and open Error\/Bug report.\n\n             2.5 Support Tools. At no charge to 3Com, Company shall provide\ndiagnostic tools which Company has the right to provide to 3Com and procedures\nand a list\/description of test equipment reasonably necessary and used by\nCompany to troubleshoot problems and assist in problem identification, isolation\nand resolution.\n\n       Company shall also provide the following additional support tools, if\navailable: (i) compatibility\/inter-operability matrix and (ii) supported and not\nsupported configurations statement. Company shall further promptly provide to\n3Com when available, all modifications or other revisions to such support tools.\n\n             2.6 Support Evaluation. From time to time following acceptance by\n3Com of the Products, but no less frequently than once each calendar quarter,\nmanagement-level support representatives from each party will meet to review the\nperformance of, and recommend improvements regarding, the technical support and\nwarranty assistance offered to End Users and Authorized Resellers under this\nAgreement.\n\n       3.    Hardware Support\n\n             3.1 Repair Services. 3Com shall have the right to purchase Product\nrepair services, spare parts and upgrade kits as applicable for a period of\nseven (7) years after the last shipment of the affected Product hereunder,\nnotwithstanding the expiration of the Agreement. Such purchases shall be\ngoverned by the applicable terms and conditions set forth herein. The prices\ncharged for such Product repair services, spare parts and upgrade kits shall be\nat the lowest prices then charged by Company to any other Customer for similar\nquantities of the same or comparable items. Should Company fail to provide\nexchange or repair obligations, then Company will provide suitable and form,\nfit, and function compatible replacement products at no additional charge to\n3Com.\n\n             3.2 Inventory Requirements. Company will provide failure analysis\nreports for the Product. The reports shall include predicted, demonstrated and\nfield data for the whole unit assembly and individual subassemblies (FRUs\/Field\nReplaceable Units), including MTBF\/Mean Time Between Failure data, and how MTBF\nis computed. The reports will also\n\n\n\n                                       34\n\n     35\n\n\n\ninclude the sparing\/inventory rationale used by the Company. Company will\nprovide to 3Com product and spares inventory recommendations, based on the\nfailure analysis data.\n\n             3.3 Test and Repair Procedures. At no charge to 3Com, Company shall\nprovide test specifications, test equipment specifications, and written test\nprocedures necessary to enable 3Com personnel to verify functional failures,\nperform adjustments and alignments, as required, and verify functional\nperformance.\n\n             3.4 Out-of-Warranty Repairs. Company will repair or replace a\ndefective Product and forward the same back to 3Com. Company will repair\ndefective Product to 3Com standards, including cosmetic standards (i.e., proper\nlabeling, no scratches or dents, all feet). Company will upgrade repaired\nProduct to the most recent revision level for such Product at no additional\ncost. Company shall charge its standard repair rates less the largest discount\noffered to Company's other customers. Any out-of-warranty repaired Products\ncarry a ninety (90) day warranty from shipment by Company. 3Com reserves the\noption to perform out-of-warranty repairs at the 3Com repair facilities. In the\nevent 3Com exercises the option to perform repairs at the 3Com facilities,\nCompany shall provide all required product specifications, engineering\ndocumentation, test and repair procedures. Out-of-warranty repair charges for a\nProduct shall not exceed twenty percent (20%) of the discounted price paid by\n3Com for such Product.\n\n             3.5 Return Material Authorization (RMA). Company shall provide 3Com\nwith RMA procedures. The following procedure shall apply to Company's repair of\nboth in- warranty and out-of-warranty Products, except as otherwise noted.\n\n                  (i) Management. Company will use its commercially reasonable\nefforts to provide 3Com with RMA number within twenty-four (24) hours after\nreceipt of request. 3Com Repair RMA returns of Products will be managed through\na 3Com Repair center. 3Com shall notify Company if it opens more than five such\nrepair centers. Company will provide domestic and international interfaces to\nmanage 3Com returns. 3Com shall return Product to Company's closest geographic\nrepair center.\n\n                  (ii) Turn-Around Time. Company will use commercially\nreasonable efforts to repair or replace the defective Product and forward the\nsame back to 3Com within ten (10) business days after receipt, but in all\ninstances Company shall repair or replace the defective Product and forward the\nsame back to 3Com within fifteen (15) business days. Company will provide\nexpedited repair service to accommodate 3Com emergency requirements with an\nexpedite cost equal to ten percent (10%) of the repair charge described in the\nlast sentence of section 3.4 above; provided however that if the Product for\nwhich expedited repair service has been requested is not repaired or replaced\nand forwarded back to 3Com within ten (10) business days, such expedite cost\nshall be waived.\n\n                  (iii) Reporting. 3Com Repair RMA returns of Products will be\nreturned with an itemized repair report for each unit. Company will provide a\nmonthly report of: (i) RMAs processed, including failure analysis and (ii)\nphysical inventory of 3Com owned material. Upon special request, Company will\nprovide inventory status within two (2)\n\n\n\n                                       35\n\n     36\n\n\n\nbusiness days.\n\n                  (iv) Shipping charges. 3Com will pay shipping charges on\nout-of-warranty Products shipped to Company for repair. Company will pay\nshipping charges on Products returned to 3Com.\n\n                  (v) Packaging requirements. Company and 3Com will jointly\ndevelop a repair shipping process prior to FCS\/First Customer Ship of a Product\nby 3Com that satisfies packaging requirements for both parties.\n\n             3.6 No Problem Found (NPF). Company shall provide statistics on\nProduct NPF returns on a quarterly basis. Company shall waive any NPF charges on\nCom21 Headend Products returned for repair to the extent such Com21 Headend\nProducts represent less than twenty-five percent (25%) of the out-of-warranty\nCom21 Headend Products returned for repair during that calendar quarter. 3Com\nmay be subject to charges associated with Company's handling and shipping of NPF\nreturns in excess of twenty-five percent (25%) of the out-of-warranty Com21\nHeadend Product returns, not to exceed twenty-five percent (25%) of the repair\ncharge. Company shall waive any NPF charges on Com21 Modem Products returned for\nrepair to the extent such Com21 Modem Products represent less than ten percent\n(10%) of the out-of-warranty Com21 Modem Products returned for repair during\nthat calendar quarter. 3Com may be subject to charges associated with Company's\nhandling and shipping of NPF returns in excess of ten percent (10%) of the\nout-of-warranty Com21 Modem Product returns, not to exceed twenty-five percent\n(25%) of the repair charge. Further, both parties agree to work together to\nreduce the frequency of NPF returns.\n\n       4.    Training\n\n             4.1 Technical Training. During the term of this Agreement, Company\nshall, at its expense, provide 3Com with one (1) course per Product of basic and\nadvanced training for up to six (6) 3Com employees (including the Authorized\nCallers) engaged in the technical support of the Product. Company shall further\nprovide to 3Com, at Company's expense, similar training for modifications or\nother revisions to the Product(s). Training will be conducted at Com21's\nfacilities in Milpitas, California or such other mutually agreeable facility.\n\n       Each training course shall commence on a mutually agreed upon date. Such\ntraining shall cover in detail, the installation, configuration, operation,\ntrouble shooting, adjustment, test and maintenance of the Product. When training\nis held at Company's training facilities, Company shall provide a reasonable\nquantity of appropriate Product units as training aids. When such classes are\nconducted at 3Com's facilities, 3Com shall provide a reasonable quantity of\nProducts, and other required equipment as training aides. Company shall provide\ncopies of the student training guides, and all other necessary materials to each\ntrainee and to 3Com. 3Com may record any or all training courses on video tape\nand may reproduce and distribute such recordings, for internal use only, under\n3Com's name.\n\n\n\n\n                                       36\n\n     37\n\n\n\n       Company also shall provide at no cost to 3Com, continuing training to\n3Com employees and independent contractors, as follows:\n\n                  (a) After the first year of the Agreement, Company shall\nprovide annually to 3Com, without cost, complete technical training relating to\nits Products for up to six (6) qualified individuals;\n\n                  (b) Upon the release of each new Product or new version of\nexisting Product with substantial functional changes, Company shall provide to\n3Com, without cost, complete technical training relating to such new Product or\nversion for six (6) qualified individuals.\n\n       Company shall offer additional training throughout the term of this\nAgreement at Company's standard rates that are listed in Exhibit B (Product and\nPrice List). If conducted at other than 3Com's Santa Clara or San Jose facility\nor Company's facility, 3Com shall pay all reasonable costs incurred by Company's\ninstructor(s) for travel and living expenses during the period of such training.\nCompany shall pay for the salary of its instructor(s) and all other costs and\nexpenses related to such training. Company shall submit invoices to 3Com after\nthe conclusion of such training classes which itemize all expenses incurred and\nshall include copies of all receipts therefor. Payment terms shall be net thirty\n(30) days from receipt of invoice.\n\n             4.2 Training Courses and Materials. During the term of this\nAgreement, Company shall provide 3Com with all materials utilized to provide\ntraining in connection with the Products. Training shall include, but is not\nlimited to, customer reseller and end-user courses. Training materials shall\nalso include, but are not limited to, instructor guides, overheads, student\nworkbooks, and manual\/guides. Company shall provide masters of such training\nmaterials in both hard copy and electronic media. Company shall further provide\ncopies of all modifications or other revisions to such training materials as\nthey become available. 3Com is permitted to use such material for its internal\nuse only in training 3Com's sales and support staff on the Products.\n\n       Company hereby grants to 3Com a royalty-free non-exclusive, worldwide\nlicense to use, modify, create derivative works based upon, reproduce and\ndistribute the training materials (whether modified or unmodified but excepting\nproprietary technical information relating to the products) for use by its\nAuthorized Resellers and End Users and its\/their employees and consultants in\nconnection with the Products distributed under the terms of the Agreement.\n\n       3Com hereby grants to Company a royalty-free non-exclusive, worldwide\nlicense to use, modify, create derivative works based upon, reproduce and\ndistribute the 3Com training materials (whether modified or unmodified but\nexcepting proprietary technical information relating to 3Com products) based\nupon the Company training materials and created in accordance with the license\ngranted in the immediately preceding paragraph, for use by Company's authorized\nresellers and End Users and its\/their employees and consultants in connection\nwith the Products distributed under the terms of the Agreement.\n\n\n\n\n                                       37\n\n     38\n\n\n\n                                                                 Escrow # 1267-7\n                                    EXHIBIT D\n\n                                ESCROW AGREEMENT\n\n       This Escrow Agreement (\"Escrow Agreement\") is executed this 18th day of\nSeptember 1997 by and among Com21, Inc., a Delaware corporation (\"Company\"),\nwith an office at 750 Tasman Drive, Milpitas, California 95053, 3Com\nCorporation, a Delaware corporation (\"3Com \"), with an office at 5400 Bayfront\nPlaza, Santa Clara, CA 95052-8145, and Brambles NSD, Inc., a Delaware\ncorporation (\"Escrow Agent\"), as Escrow Agent.\n\n\n                                    RECITALS\n\n       A. Company and 3Com have entered into a Reseller Agreement (\"Reseller\nAgreement\") pursuant to which Company shall distribute the Products, as defined\nin the Reseller Agreement, to 3Com.\n\n       B. The Reseller Agreement requires Company and 3Com to enter into an\nEscrow Agreement with Escrow Agent in the form hereof.\n\n       C. The purpose of this Escrow Agreement is to provide for Company's\nperiodic deposit of the Technology Documentation, as defined below, with Escrow\nAgent and, under certain circumstances specified below, to permit 3Com to obtain\nthe Technology Documentation from the Escrow Agent solely for the purposes set\nforth herein.\n\n       D. Escrow Agent is in the business of providing third party technical\nescrow protection by storing, retaining and allowing limited access to\nproprietary technology, including computer software, related media,\ndocumentation, and materials.\n\n       NOW, THEREFORE, in consideration of the promises and mutual covenants\ncontained herein, the parties agree as follows:\n\n       1.    DEPOSIT OF DOCUMENTATION.\n\n             a. The term \"Technology Documentation\" as used in this Escrow\nAgreement has the same meaning as set forth in Section 1.23 of the Reseller\nAgreement.\n\n              b. The term \"Deposit\" as used in this Escrow Agreement means the\nTechnology Documentation, including updates, deposited with Escrow Agent by\nCompany pursuant to this Escrow Agreement.\n\n              c. Company agrees to deposit with Escrow Agent, a complete copy of\nthe Technology Documentation, within ten (10) days after the date of first\nshipment by Company of the Products to 3Com. Any deposit with the Escrow Agent\nshall consist of a sealed package certified by an authorized officer of Company\nto contain a complete set of the\n\n\n\n                                       38\n\n     39\n\n\n\nTechnology Documentation as defined in Paragraph 1(a) above.\n\n       2.    REVISIONS AND MAINTENANCE.\n\n             a. Company agrees to deposit with Escrow Agent a copy of all\nrevisions of and additions to the Technology Documentation (\"Updates\") if\nCompany updates its own archival copy of the Technology Documentation. Such\nrevisions and additions shall be deposited in a sealed package certified by an\nauthorized officer of Company to contain a complete Update.\n\n             b. Escrow Agent shall acknowledge receipt of all Deposits by\nsending written acknowledgment thereof to both Company and 3Com within ten (10)\ndays of acceptance of a Deposit by Escrow Agent.\n\n       3.    VERIFICATION.\n\n             a. At 3Com's option and expense, 3Com may select an independent,\ndisinterested consultant, reasonably acceptable to Company, to verify that any\nDeposit delivered to the Escrow Agent contains a complete version of the\nTechnology Documentation. For purposes of this Agreement, the consultant may,\namong other things, compile any source code into object code and test and\ncompare such object code version against Company's version. As a condition to\npermitting the consultant to perform verification under this Escrow Agreement,\nthe consultant will be required to execute an appropriate confidentiality\nagreement in a form reasonably acceptable to Company for the protection of\nCompany's proprietary rights in the Technology Documentation.\n\n             b. The consultant has permission to remove the Deposit or any\nportion thereof from the Escrow Agent's site location to verify that the Deposit\ncontains the Technology Documentation and as part of such verification, to test\nthe Deposit accordingly to determine if the Deposit is sufficient to permit 3Com\nto exercise its fights under Section 10 (Manufacturing License Grant Including\nthe Use of Source Code) hereof, when and if such rights become exercisable. The\nconsultant will not be permitted to communicate to 3Com any information\nconcerning the documentation, including design, structure, sequence or other\ninternal aspects of the source code contained in the Deposit, but will merely\nverify for 3Com that the source code contained in the Deposit is complete,\naccessible, and contains the materials it should contain in accordance with this\nEscrow Agreement.\n\n       4.    STORAGE AND SECURITY.\n\n             a. Escrow Agent shall act as custodian of the Deposit until the\nescrow is terminated pursuant to Section 12 (Termination) of this Escrow\nAgreement. Escrow Agent shall establish, under its control, a secure receptacle\nfor the purpose of storing the Deposit and shall put the receptacle under the\ncontrol of one or more of its officers, selected by Escrow Agent, whose identity\nshall be available to Company and 3Com at all times. Escrow Agent shall exercise\na professional level of care in carrying out the terms of this Escrow Agreement.\n\n\n\n\n                                       39\n\n     40\n\n\n\n             b. The Deposit shall remain the exclusive property of the Company,\nsubject only to the licenses provided in this Escrow Agreement.\n\n             c. Escrow Agent shall not divulge, disclose or otherwise make\navailable the Deposit to any parties other than those persons duly authorized in\nwriting by an officer of Company or make any use whatsoever of the Deposit or of\nany information provided to it by Company in connection with this Escrow\nAgreement, except as provided in this Escrow Agreement.\n\n             d. Escrow Agent shall not permit any person access to the Deposit\nexcept in accordance with Section 3 (Verification) and as may be necessary for\nEscrow Agent's authorized representatives to perform under this Escrow\nAgreement. This obligation will continue indefinitely notwithstanding\ntermination of this Escrow Agreement.\n\n             e. Access to the Deposit shall not be granted without compliance\nwith all security and identification procedures instituted by Escrow Agent.\n\n             f. Escrow Agent shall have no obligation or responsibility to\nverify or determine that the Deposit does, in fact, consist of those items which\nCompany is obligated to deliver, under any agreement, and Escrow Agent shall\nbear no responsibility whatsoever to determine the existence, relevance,\ncompleteness, currency, or accuracy of the Deposit.\n\n             g. Escrow Agent's sole responsibility shall be to accept, store and\ndeliver the Deposit, in accordance with the terms and conditions of this Escrow\nAgreement.\n\n             h. If any of the Deposit shall be attached, garnished or levied\nupon pursuant to an order of court, or the delivery thereof shall be stayed or\nenjoyed by an order of court, or any other order, judgment or decree shall be\nmade or entered by any court affecting the Deposit or any part thereof, Escrow\nAgent is hereby expressly authorized in its sole discretion to obey and comply\nwith all orders, judgments or decrees so entered or issued by any court, without\nthe necessity of inquiring whether such court had jurisdiction, and in case\nEscrow Agent obeys or complies with any such order, judgment or decree, Escrow\nAgent shall not be liable to any 3Com of Record, Company or any third party by\nreason of such compliance, notwithstanding that such order, judgment or decree\nmay subsequently be reversed, modified or vacated.\n\n       5.       RELEASE OF DEPOSIT.\n\n             a. Upon the occurrence of any Event of Default (as defined in\nSection 8 (Events of Default), 3Com may deliver to Escrow Agent a written notice\nof such Event of Default (\"Notice\"), and Escrow Agent shall provide a copy of\nsuch Notice to Company by certified mail. Unless Company shall have provided\nContrary Instructions (as defined below) to Escrow Agent within ten (10) days\nafter receipt of 3Com's Notice, the Deposit shall be delivered to 3Com by Escrow\nAgent within the next five (5) business days following the end of such ten (10)\nday period.\n\n\n\n\n                                       40\n\n     41\n\n\n\n             b. \"Contrary Instructions\" for the purpose of this Escrow Agreement\nmeans a notarized affidavit executed by an official of Company stating that the\nEvent or Events of Default specified in 3Com's Notice have not occurred, or have\nbeen cured.\n\n             c. Upon timely receipt of such Contrary Instructions, Escrow Agent\nshall not release the Deposit, but shall continue to store the Deposit until\notherwise directed by 3Com and Company jointly, or until resolution of the\ndispute pursuant to Section 6 (Dispute Resolution) of this Escrow Agreement, or\nby a court of competent jurisdiction.\n\n             d. Notwithstanding any Deposit release hereunder, the obligations\nof Company to continue making Deposits and the obligations of Escrow Agent to\nreceive and maintain such Deposits shall continue throughout the term of this\nEscrow Agreement.\n\n       6. DISPUTE RESOLUTION. Company and 3Com agree that if Contrary\nInstructions are timely given by Company pursuant to Section 5 (Release of\nDeposit) hereof, then Company and 3Com shall submit their dispute regarding\n3Com's Notice to arbitration by a single arbitrator who is a member of the\nAmerican Arbitration Association, according to its rules and regulations then in\neffect. Said arbitration shall take place in the city and state where the\nDeposit is stored by Escrow Agent. The decision of the arbitrator shall be final\nand binding upon the parties and enforceable in any court of competent\njurisdiction, and a copy of such decision shall be delivered immediately to\nCompany, 3Com and Escrow Agent. The parties shall use their reasonable efforts\nto commence the arbitration proceeding within ten (10) business days following\ndelivery of the Contrary Instructions. 'Me sole questions to be determined by\nthe arbitrator shall be whether or not 3Com has the right to receive the Deposit\nunder the terms of this Escrow Agreement. If the arbitrator finds that 3Com has\nthe right to receive the Deposit, Escrow Agent shall promptly deliver the\nDeposit to 3Com . Depositions may be taken and discovery obtained in any such\narbitration proceedings in accordance with California Code of Civil Procedure\n(\"CCP\") Section 1283.05 and 1283.1. All fees and charges by the American\nArbitration Association and the reasonable attorneys' fees and costs incurred by\nthe prevailing party in the arbitration shall be paid by the non-prevailing\nparty. Judgment upon the award rendered by the arbitrator may be entered into\nany court having jurisdiction thereof. Notwithstanding the foregoing, either\nparty shall have the right to obtain a preliminary judgment on any equitable\nclaim in any court of competent jurisdiction, where such judgment is necessary\nto preserve property or proprietary rights under this Escrow Agreement. Such\njudgment shall remain effective as long as the terms of the judgment so provide\nor until specifically superseded by the action of the arbitrator as provided\nabove.\n\n       7. BANKRUPTCY. Company and 3Com acknowledge that this Escrow Agreement is\nan \"agreement supplemental to\" the Reseller Agreement as provided in Section\n365(n) of Title 11, United States Code (\"Bankruptcy Code\"). Company acknowledges\nthat if Company (as a debtor in possession) or a trustee in bankruptcy rejects\nthe Reseller Agreement or this Escrow Agreement in a case under the Bankruptcy\nCode, 3Com may elect to retain its rights under the Reseller Agreement and this\nEscrow Agreement as provided in Section 365(n) of the Bankruptcy Code. Upon\nwritten request of 3Com to Company or the Bankruptcy Trustee, Company or such\nBankruptcy Trustee shall not interfere with the rights of 3Com as provided\n\n\n\n                                       41\n\n     42\n\n\n\nin the Reseller Agreement and this Escrow Agreement. including the right to\nobtain the Deposit from Escrow Agent.\n\n       8. EVENTS OF DEFAULT. The occurrence of any of the following shall\nconstitute an \"Event of Default\" for purposes of this Escrow Agreement.\n\n             a. Company becomes insolvent, generally fails to pay or admits in\nwriting its inability to pay its debts as they become due;\n\n             b. Company applies for or consents to the appointment of a trustee,\nreceiver or other custodian or makes a general assignment for the benefit of its\ncreditors;\n\n             c. The Reseller Agreement is not assumed in its entirety pursuant\nto Section 365 of Title 11 of the United States Bankruptcy Code and not\ndismissed within ninety (90) days of the date of the filing of any bankruptcy\nproceeding or if the bankruptcy trustee rejects the Reseller Agreement prior to\nthe expiration of said ninety (90) day period;\n\n             d. Company takes any corporate or other action to authorize, or in\nfurtherance of, any of the foregoing;\n\n             e. Any event occurs which would permit 3Com to terminate the\nReseller Agreement pursuant to Section 15.2 (Termination for Cause) thereof\nexcept as described in Section 2.4 (Sustaining Engineering\/Error Correction) of\nExhibit C (Support Services) of the Reseller Agreement or to terminate the\nTechnology License and Reseller Agreement dated March 22, 1996 (except as\ndescribed in Section 5.3 of such agreement (Acceptance) or if 3Com elects not to\nrenew such agreement in accordance with Section 17.1 (Term) of the Technology\nLicense and Reseller Agreement);\n\n             f. Company ceases, or gives notice that it intends to cease\nmanufacturing and distributing the Com21 Headend Products (as such term is\ndefined in the Reseller Agreement); or\n\n             g. Company is unable to meet the reasonable supply requirements of\nCom21 Headend Products of 3Com's customers. For purposes of this Section 8(d),\nCompany shall be deemed to be unable to meet the reasonable supply requirements\nof 3Com's customers if Company is more than thirty (30) days late in shipping\nfifty percent (50%) or more of scheduled orders of Com21 Headend Products for\nany three (3) consecutive months; provided that such delays in shipment are not\nthe result of the occurrence of a force majeure condition as specified in\nSection 17 (Force Majeure) of the Reseller Agreement that has lasted for less\nthan one hundred thirty-five (135) days or is not due to any delay, failure to\nperform or interference by 3Com. In order for Company not to be deemed unable to\nmeet such reasonable supply requirements, Company must fulfill orders on a\n\"first-in first-out\" (FIFO) basis (e.g., orders from Company's customers are\nfulfilled in the order they are received).\n\n       9. INDEMNIFICATION. Company and 3Com jointly and severally agree to\nindemnify, defend and hold Escrow Agent harmless from and against any and all\nclaims,\n\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n                                       42\n\n     43\n\n\n\nactions and suits, whether groundless or otherwise, and from and against any and\nall liabilities, losses, damages, costs, charges, penalties, counsel fees, and\nany other expense of any other nature, including, without limitations,\nsettlement costs incurred by Escrow Agent on account of any act or omission of\nEscrow Agent, in respect of or with regard to this Escrow Agreement, except\ninsofar as such liabilities arise by reason of Escrow Agent's gross negligence\nor willful misconduct.\n\n       10. MANUFACTURING LICENSE GRANT INCLUDING THE USE OF SOURCE CODE. If any\nor all of the Technology Documentation is released to 3Com pursuant to Section 5\n(Release of Deposit), Company hereby grants 3Com the rights in and to the\nTechnology Documentation as provided in Section 16 (Technology Escrow and\nManufacturing License) of the Reseller Agreement.\n\n       11. RECORDS. Escrow Agent agrees to keep complete written records of the\nactivities undertaken and materials prepared and delivered to Escrow Agent\npursuant to this Escrow Agreement. Company and 3Com shall be entitled at\nreasonable times during normal business hours and upon reasonable notice to\nEscrow Agent during the term of this Escrow Agreement to inspect the records of\nEscrow Agent with respect to the Technology Documentation. Company shall be\nentitled upon reasonable notice to Escrow Agent and during normal business hours\nto inspect the facilities of Escrow Agent with respect to the physical status\nand condition of the Technology Documentation.\n\n       12.   TERMINATION.\n\n             a. This Escrow Agreement shall terminate ninety (90) days after\ntermination of the Reseller Agreement. Upon such termination, except for\ntermination as a result of rejection of the Reseller Agreement in a bankruptcy\ncase of Company, Escrow Agent shall return the Deposit to Company.\n\n             b. 3Com may unilaterally terminate this Escrow Agreement upon sixty\n(60) days written notice to Escrow Agent. Upon such termination, Escrow Agent\nshall return the Deposit to Company.\n\n             c. Escrow Agent reserves the fight to resign as Escrow Agent upon\nsixty (60) days prior written notice to Company and 3Com. Escrow Agent shall,\nupon such termination, transfer the Deposit to such substitute Escrow Agent as\nis specified in Company's and 3Com's joint notice to Escrow Agent after having\nreceived payment of its fees and costs pursuant to Section 14 (Fees) of this\nEscrow Agreement.\n\n             d. In the event that the sixty (60) day notice period in Section\n12.b elapses without Escrow Agent having received payment from either Company or\n3Com of the remaining fees due, Escrow Agent shall then have the option, without\nfurther notice of either party, to terminate this Escrow Agreement and to\ndestroy the Deposit.\n\n       13. GOOD FAITH RELIANCE. Escrow Agent may rely and act upon any\ninstruction, instrument, or signature believed in good faith to be genuine, and\nmay assume that\n\n\n\n                                       43\n\n     44\n\n\n\nany person purporting to give any writing, notice, respect, advise or\ninstruction in connection with or relating to this Escrow Agreement has been\nduly authorized to do so.\n\n       14.   FEES.\n\n             a. In consideration of performing its functions as Escrow Agent,\nEscrow Agent shall be compensated by 3Com as set forth in Schedule I hereto (Fee\nSchedule). The fees set forth in Fee Schedule will be billed periodically by\nEscrow Agent to 3Com.\n\n             b. The fees set forth in Fee Schedule are for Escrow Agent's\nordinary services as Escrow Agent. In the event Escrow Agent is required to\nperform any additional or extraordinary services as a result of being Escrow\nAgent, including intervention in any litigation or proceeding, Escrow Agent\nshall receive reasonable compensation for such services and be reimbursed for\nsuch costs incurred, including reasonable attorney's fees.\n\n             c. Escrow Agent shall be entitled to receive payment of all costs,\nfees and expenses due it, prior to any release or return of the Deposit.\n\n       15. ENTIRE AGREEMENT. This Escrow Agreement and the Reseller Agreement,\nincluding the Exhibits hereto and thereto, constitute the entire agreement among\nthe parties regarding the subject matter hereof, and shall supersede all\nprevious and contemporaneous communications, representations, understandings and\nagreement, either oral or written between the parties.\n\n       16. NOTICE. All notices required or permitted by this Escrow Agreement\nshall be in writing and shall be deemed to have been received upon the earlier\nof receipt or one (1) day after dispatch, if sent by (i) personal same or next\nday delivery, (ii) facsimile with confirmation of transmission or (iii)\ncommercial overnight carrier with written verification of receipt, to the other\nparties at the address or facsimile number set forth below. The parties may\nchange their address or facsimile number by written notice to the other parties.\n\n             a.   Escrow Agent:\n\n                  Brambles NSD, Inc.\n                  2109 Bering Drive\n                  San Jose, CA 95117-2014\n                  Attn: Escrow Officer\n                  Fax:  (408) 441-6826\n\n             b.   Company:\n\n                  Com21, Inc.\n                  750 Tasman Drive\n                  Milpitas, CA 95035\n                  Telecopy: (408) 953-9299\n                  Attn: President\n\n\n\n                                       44\n\n     45\n\n\n\n\n                  with copies to:\n\n                  Brobeck, Phleger &amp; Harrison LLP\n                  Two Embarcadero Place\n                  2200 Geng Road\n                  Palo Alto, CA 94303\n                  Telecopy: (415) 496-2885\n                  Attention:  Edward M. Leonard, Esq.\n\n             c.   3Com:\n\n                  3Com Corporation\n                  5400 Bayfront Plaza\n                  Santa Clara, CA 95052\n                  Telecopy: (408) 764-8955\n                  Attention: Interface Products Group Purchasing Manager\n\nWith a copy to the attention of 3Com's General Counsel at the address above, and\na telecopy number of (408) 764-6434.\n\n       17. COUNTERPARTS. This Escrow Agreement may be executed in one or more\ncounterparts, each of which shall be deemed an original, and all of which taken\ntogether shall constitute one and the same instrument.\n\n       18. GOVERNING LAW. This Escrow Agreement shall be governed by and\nconstrued according to the internal laws of the State of California without\napplication of the principles of choice of law or conflict of laws.\n\n       19. SEVERABILITY. In the event any of the provisions of this Escrow\nAgreement shall be held by a court of competent jurisdiction to be contrary to\nany state or federal law, the remaining provisions of this Escrow Agreement will\nremain in full force and effect.\n\n       20. HEADINGS. The section headings in this Escrow Agreement do not form a\npart of it, but are for convenience only and shall not limit or affect the\nmeaning of the provisions.\n\n\n\n\n\n                                       45\n\n     46\n\n\n\n       IN WITNESS WHEREOF, the parties have executed this Escrow Agreement on\nthe date first above written.\n\n\nCOM21                                   3COM          \n                                                      \n                                                      \nBy:                                     By:           \n   -------------------------------         -------------------------------\n                                                      \nPrinted Name:                           Printed Name: \n             ---------------------                   ---------------------\n                                                      \nTitle:                                  Title:        \n      ----------------------------            ----------------------------\n                                                      \nDate:                                   Date:         \n     -----------------------------           -----------------------------\n                                        \n\n\n                                        ESCROW AGENT:  Brambles NSD, Inc.   \n                                        \n                                        \n                                        By:\n                                           -------------------------------\n                                        \n                                        Name:\n                                             -----------------------------\n                                        \n                                        Title:\n                                              ----------------------------\n          \n\n\n\n\n\n                                       46\n\n     47\n\n\n\n                                   SCHEDULE 1\n\n                                  FEE SCHEDULE\n\n\n\n\n\n                                       47\n\n     48\n\n\n\n                                   SCHEDULE 1\n\n                                  FEE SCHEDULE\n\n\n       Escrow Agent:    BRAMBLES NSD, INC.\n                        2109 Bering Drive\n                        San Jose, CA 95131-2014\n\nRe:    Escrow Agreement # 1267-7, dated September 18, 1997\n\n  \n                                                                                      \n1.     Initial Acceptance Fee (One Time Only)                               $1,125.00\n\n\n2.     Custom Escrow Agreements\n             Priced by Proposal\n\n\n3.     Annual Storage Fee\n             Standard Storage Unit 10\" X 10\" X 24\"                          $  425.00\n             (Larger Units Available)\n\n             (Total start-up and first year's fees = $1,550.00)\n\n\n4.     Account Administration\/Maintenance\n             Clerical (One hour minimum per year)                           $ 30.00\/Hr.\n             Officer Level (As required)                                    $ 70.00\/Hr.\n             Termination Fee (Minimum)                                      $150.00\n                  Shipping additional\n\n\n5.           Registration of Additional Licensees To \n             Multiple Licensee Escrow\n             First Licensee                                                 No Charge \n             Additional Licensees - Initial Registration                    $110.00 ea.\n             Annual Fee Per Licensee Thereafter                             $ 25.00 ea.\n\n\n6.     Outside Costs\n             Cost Plus 10%, as Incurred\n  \n\n\nPrices subject to change without notice.\n\n                                                              Effective 12\/15\/92\n\n\n\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n\n\n\n\n                                       48\n\n     49\n\n\n\n                                    EXHIBIT E\n\n                    COM21 END USER SOFTWARE LICENSE AGREEMENT\n\n              IMPORTANT: Read Before Opening or Using This Product\n\n\n                    COM21 END USER SOFTWARE LICENSE AGREEMENT\n\nYOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING OR\nUSING THIS PRODUCT. IT CONTAINS SOFTWARE, THE USE OF WHICH IS LICENSED BY COM21,\nINC. (\"COM21\") TO ITS CUSTOMERS FOR THEIR USE ONLY AS SET FORTH BELOW. IF YOU DO\nNOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, RETURN THIS ENTIRE\nPACKAGE UNOPENED OR WITH THE SOFTWARE UNUSED TO COM21 OR THE LOCATION WHERE YOU\nOBTAINED IT.\n\n\nLICENSE: Com21 grants you a nonexclusive license to use the accompanying\nsoftware program(s) (the \"Software\") subject to the terms and restrictions set\nforth in this License Agreement. Except as provided below, this License\nAgreement does not grant you any rights to patents, copyrights, trade secrets,\ntrademarks, or any other rights in respect to the Software.\n\nThe Software is licensed to be installed and used on any appropriate Com21\nproducts owned by or leased to you. You may reproduce and provide one (1) copy\nof the Software and supporting documentation for each such product on which the\nSoftware is used as permitted hereunder. Otherwise, the Software and supporting\ndocumentation may be copied only as essential for backup or archive purposes in\nsupport of your use of the Software as permitted hereunder. You must reproduce\nand include all copyright notice(s) and any other proprietary rights notices\nappearing on the Software and the supporting documentation on any copies that\nyou make.\n\nASSIGNMENT; NO REVERSE ENGINEERING: You may transfer the Software and\nlicense to another party in the same country in which you obtained the Software\nif the other party agrees in writing to accept the terms and conditions of this\nLicense Agreement. If you transfer the Software, you must at the same time\neither transfer any copies of the Software as well as the supporting\ndocumentation to the same party or destroy any such materials not transferred.\nExcept as set forth above, you may not assign your rights under this License\nAgreement.\n\nModification, reverse engineering, reverse compiling, or disassembly of the\nSoftware is expressly prohibited. However, if you are a European Community\n(\"EC\") resident, information necessary to achieve interoperability of the\nSoftware with other programs within the meaning of the U.K. Copyright [Computer\nProgram] Regulations 1992 implementing the EC Directive on the Legal Protection\nof Computer Programs is available to you from Com21 upon written request.\n\n\n\n                                       49\n\n     50\n\n\n\n\nEXPORT RESTRICTIONS: You agree that you will not export or re-export the\nSoftware or accompanying documentation (or any copies thereof) or any products\nutilizing the Software or such documentation in violation of any applicable laws\nor regulations of the United States or the country in which you obtained them.\n\nTRADE SECRETS; TITLE: You acknowledge and agree that the structure, sequence and\norganization of the Software are the valuable trade secrets of Com21 and its\nsuppliers. You agree to hold such trade secrets in confidence. You further\nacknowledge and agree that ownership of, and title to, the Software and all\nsubsequent copies thereof regardless of the form or media are held by Com21 and\nits suppliers.\n\nUNITED STATES GOVERNMENT LEGENDS:\n\nFor units of the Department of Defense:\n\nThe Software is commercial computer software as defined in 48 C.F.R. 21 1 and\ntherefore is provided to units of the Department of Defense under the terms of\nthis License Agreement, which is Com21's standard commercial agreement for the\nSoftware. In the alternative, if 48 C.F.R. 211 is not invoked, the Software is\nlicensed as follows:\n\nRestricted Rights Legend: Use, duplication or disclosure by the United States\nGovernment is subject to restrictions as set forth in subparagraph (c)(1)(ii) of\nthe Rights in Technical Data and Computer Software Clause at 48 C.F.R.\n52.227-7013. Com21, Inc., 750 Tasman Drive, Milpitas, California 95035.\n\nFor civilian agencies:\n\nRestricted Rights Legend: Use, reproduction or disclosure is subject to\nrestrictions set forth in subparagraph (a) through (d) of the Commercial\nComputer Software - Restricted Rights clause at 48 C.F.R. 52.227-19 and the\nlimitations set forth in Com21's standard commercial agreement for the Software.\nUnpublished rights reserved under the copyright laws of the United States.\n\nTERM AND TERMINATION: This license will expire fifty (50) years from the date\nthat you first use the Software, if it is not earlier terminated. You may\nterminate it at any time by destroying the Software and documentation together\nwith all copies and merged portions in any form. It will also terminate\nimmediately if you fail to comply with any term or condition of this License\nAgreement. Upon such termination you agree to destroy the Software and\ndocumentation, together with all copies and merged portions in any form.\n\nGOVERNING LAW: This License Agreement shall be governed by the laws of the State\nof California as such laws are applied to agreements entered into and to be\nperformed entirely within California between California residents and by the\nlaws of the United States. You agree that the United Nations Convention on\nContracts for the International Sale of Goods (1980) is hereby excluded.\n\n\n\n\n                                       50\n\n     51\n\n\n\nLIMITED WARRANTY; LIMITATION OF LIABILITY: All warranties and limitations of\nliability applicable to the Software are as stated on the Limited Warranty Card\nor in the product manual accompanying the Software. Such warranties and\nlimitations of liability are incorporated herein in their entirety by this\nreference.\n\nSEVERABILITY: In the event any provision of this License Agreement is found to\nbe invalid, illegal or unenforceable, the validity, legality and enforceability\nof any of the remaining provisions shall not in any way be affected or impaired\nand a valid, legal and enforceable provision of similar intent and economic\nimpact shall be substituted therefor.\n\nENTIRE AGREEMENT: This License Agreement sets forth the entire understanding and\nagreement between you and Com21 and may be amended only in a writing signed by\nboth parties.\n\n\n\n\n\n                                       51\n\n     52\n\n\n\n                                   COM21, INC.\n\n                                LIMITED WARRANTY\n\nHARDWARE: Com21 warrants its hardware products to be free from defects in\nworkmanship and materials, under normal use and service, for the following\nlengths of time from the date of purchase from Com21 or its Authorized Reseller:\n\n       Hardware products                                   One year\n       Spare parts and spares kits                         90 days\n\nIf a product does not operate as warranted above during the applicable warranty\nperiod, Com21 shall, at its option and expense, repair the defective product or\npart, deliver to Customer an equivalent product or part to replace the defective\nitem, or refund to Customer the purchase price paid for the defective product.\nAll products that are replaced will become the property of Com21. Replacement\nproducts may be new or reconditioned. Any replaced or repaired product or part\nhas a ninety (90) day warranty or the remainder of the initial warranty period,\nwhichever is longer.\n\nCom21 shall not be responsible for any software, firmware, information, or\nmemory data of Customer contained in, stored on, or integrated with any products\nreturned to Com21 for repair, whether under warranty or not.\n\nSOFTWARE: Com21 warrants that the software programs licensed from it will\nperform in substantial conformance to the program specifications therefor for a\nperiod of ninety (90) days from the date of purchase from Com21 or its\nAuthorized Reseller. Com21 warrants the media containing software against\nfailure during the warranty period. No updates are provided. Com21's sole\nobligation with respect to this express warranty shall be (at Com21's\ndiscretion) to refund the purchase price paid by Customer for any defective\nsoftware products, or to replace any defective media with software which\nsubstantially conforms to Com21's applicable published specifications. Customer\nassumes responsibility for the selection of the appropriate applications program\nand associated reference materials. Com21 makes no warranty or representation\nthat its software products will work in combination with any hardware or\napplications software products provided by third parties. that the operation of\nthe software products will be uninterrupted or error free, or that all defects\nin the software products will be corrected. For any third party products listed\nin the Com21 software product documentation or specifications as being\ncompatible, Com21 will make reasonable efforts to provide compatibility, except\nwhere the non- compatibility is caused by a \"bug\" or defect in the third party's\nproduct.\n\nSTANDARD WARRANTY SERVICE: Standard warranty service for hardware products may\nbe obtained by delivering the defective product, accompanied by a copy of the\ndated proof of purchase, to Com21's Corporate Service Center or to an Authorized\nCom21 Service Center during the applicable warranty period. Standard warranty\nservice for software products may be obtained by telephoning Com21's Corporate\nService Center or an Authorized Com21 Service Center, within the warranty\nperiod. Products returned to Com21's Corporate Service Center must be\npre-authorized by Com21 with a Return Material Authorization (RMA) number marked\n\n\n\n                                       52\n\n     53\n\n\n\non the outside of the package, and sent prepaid, insured, and packaged\nappropriately for safe shipment. The repaired or replaced item will be shipped\nto Customer, at Com21's expense, not later than thirty (30) days after receipt\nof the defective product by Com21.\n\nWARRANTIES EXCLUSIVE: IF A COM21 PRODUCT DOES NOT OPERATE AS WARRANTED ABOVE,\nCUSTOMER'S SOLE REMEDY FOR BREACH OF THAT WARRANTY SHALL BE REPAIR, REPLACEMENT.\nOR REFUND OF THE PURCHASE PRICE PAID, AT COM21'S OPTION. TO THE FULL EXTENT\nALLOWED BY LAW, THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN\nLIEU OF ALL OTHER WARRANTIES, TERMS, OR CONDITIONS, EXPRESS OR IMPLIED, EITHER\nIN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE. INCLUDING WARRANTIES,\nTERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND\nSATISFACTORY QUALITY. COM21 NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO\nASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION,\nMAINTENANCE OR USE OF ITS PRODUCTS.\n\nCOM21 SHALL NOT BE LIABLE UNDER THIS WARRANTY IF ITS TESTING AND EXAMINATION\nDISCLOSE THAT THE ALLEGED DEFECT IN THE PRODUCT DOES NOT EXIST OR WAS CAUSED BY\nCUSTOMER'S OR ANY THIRD PERSON'S MISUSE, NEGLECT, IMPROPER INSTALLATION OR\nTESTING, UNAUTHORIZED ATTEMPTS TO REPAIR OR MODIFY, OR ANY OTHER CAUSE BEYOND\nTHE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING, OR OTHER HAZARD.\n\nLIMITATION OF LIABILITY. TO THE FULL EXTENT ALLOWED BY LAW COM21 ALSO EXCLUDES\nFOR ITSELF AND ITS SUPPLIERS ANY LIABILITY, WHETHER BASED IN CONTRACT OR TORT\n(INCLUDING NEGLIGENCE), FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR\nPUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF\nBUSINESS, LOSS OF INFORMATION OR DATA, OR OTHER FINANCIAL LOSS ARISING OUT OF OR\nIN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE,\nFAILURE, OR CORRUPTION OF ITS PRODUCTS, EVEN IF COM21 OR ITS AUTHORIZED RESELLER\nHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND LIMITS ITS LIABILITY TO\nREPAIR, REPLACEMENT, OR REFUND OF THE PURCHASE PRICE PAID, AT COM21'S OPTION.\nTHIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY\nPROVIDED HEREIN SHALL FAIL OF ITS ESSENTIAL PURPOSE.\n\nSome countries, states, or provinces do not allow the exclusion or limitation of\nimplied warranties or the limitation of incidental or consequential damages for\ncertain products supplied to consumers or the limitation of liability for\npersonal injury, so the above limitations and exclusions may be limited in their\napplication to you. This warranty gives you specific legal rights which may vary\ndepending on local law.\n\nGOVERNING LAW: This Limited Warranty shall be governed by the laws of the state\nof California.\n\n\n\n                                       53\n\n     54\n\n\n\n                                    EXHIBIT F\n\n                            TECHNOLOGY DOCUMENTATION\n\n            [to be prepared and attached by Com21 prior to execution]\n\n\n\n\n\n\n                                       54\n\n     55\n\n\n\n                   SUPPLEMENT TO COM21\/3COM TECHNOLOGY LICENSE\n                   AND RESELLER AGREEMENT DATED MARCH 26, 1996\n\n\n3Com shall pay Com21 the $500,000 extended license fee related to the Mongoose\nASIC. This fee is described in the Technology License And Reseller Agreement\nbetween 3Com and Com21 dated March 22, 1996.\n\nAs part of the 3Com's acceptance of the Mongoose ASIC and upon payment of the\n$500,000 fee, 3Com will receive the right to buy the next generation ASIC,\ncurrently known as Jasmine, being developed to replace the Mongoose ASIC. The\nJasmine ASIC must be 100% backwards compatible with the Mongoose ASIC. 3Com\nagrees not to implement the new Jasmine features in 3Com products. No hardware\nchanges will be required to implement Jasmine and if any firmware changes are\nrequired, they will be provided by Com21 to 3Com pursuant to Sec. 6.1 of the\noriginal Technology License And Reseller Agreement.\n\nThe Jasmine ASIC will be made available to 3Com under the same pricing, terms,\nand conditions contained in the March 22, 1996 Technology License And Reseller\nAgreement that applied to the Mongoose ASIC.\n\nIn the event Com21 is no longer able to support the Jasmine ASIC if a\nsignificant defect is discovered for which no workaround is available which\ncomplies with the last sentence of paragraph two above, or if Atmel is no longer\nwilling to do business with 3Com on mutually agreeable terms, Com21 will provide\na complete Jasmine Design Package to 3Com, similar to the design package\ndescribed in the March 22, 1996 agreement, to enable 3Com to correct the defect\nor find an alternate source for the device.\n\n  \n                                                                         \n3COM CORPORATION                                  COM21, INC.                 \n                                                                              \nSigned:                                           Signed:                     \n       ---------------------------------                 ---------------------------------\n\nName:  Jef T. Graham                              Name:  Peter D. Fenner      \n     -----------------------------------               -----------------------------------\n\nTitle: Vice President &amp; General Manager           Title: President and CEO    \n      ----------------------------------                ----------------------------------\n\nDate:                                             Date:                       \n     -----------------------------------               -----------------------------------\n  \n\n\n\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n\n\n\n\n                                       55\n\n     56\n\n\n\n\n\nJune 11, 1996\n\n\nCom21, Inc.\n1991 Landings Drive\nMountain View, CA  94043\n\n       Re:   Com21 Mongoose Product Acceptance Criteria\n\nLadies and Gentlemen:\n\nThis letter will confirm that the attached Com21 Mongoose Product Acceptance\nCriteria (rev. 1.0, 6\/07\/96) is mutually agreeable to the parties and shall be\ndeemed to be Exhibit D for purposes of the Technology License and Reseller\nAgreement dated March 22, 1996 between the parties.\n\nTo confirm your agreement with the foregoing, please execute both copies of this\nletter and return one to the undersigned.\n\nVery truly yours,                       \n\n3Com Corporation                        \n\n\nBy:                                     \n   -------------------------------      \n\nPrinted:                                \n        --------------------------      \n\nTitle:                                  \n      ----------------------------      \n\n\nAGREED                             \n                                   \nCom21, Inc.                        \n                                   \n                                   \nBy:                                \n   ------------------------------- \n                                   \nPrinted:                           \n        -------------------------- \n                                   \nTitle:                             \n      ---------------------------- \n                                   \nDate:                              \n     ----------------------------- \n                                   \n\n\n                                       56\n\n     57\n\n\n\n                   COM21 Mongoose Product Acceptance Criteria\n                               Contract Exhibit D\n\nRevision 1.0, 6\/07\/96\nEd Boyd\nJohn Griesing\n\nThe following will be used to determine the acceptance of the Mongoose product.\nAll of the items listed in the document will be required to accept the Mongoose\nproduct at meeting the Acceptance Criteria.\n\n\n1.     Design Package\n\n       The following is the design package that 3Com expects to receive relative\n       to the Mongoose product. It is expected that this package will be\n       available in it's entirety at the time of fabrication of the final\n       Mongoose product.\n\n-      RTL Verilog Code that compiles without errors and with all warnings\n       messages investigated.\n\n-      Verilog simulation environment with self checking test cases. A self\n       checking test case will report an error when the feature to be tested\n       fails.\n\n-      Behavioral, minimum delay netlist, typical delay netlist, and maximum\n       delay netlist simulations passing in Verilog simulation environment.\n\n-      Set of test vectors with 90% or greater test coverage.\n\n-      Simulate vectors using minimum, typical, and maximum delays.\n\n-      Simulate vectors using dynamic timing analyzer (i.e. Epilog) (optional).\n\n-      Synopsys scripts for synthesis and complete set of timing constraints for\n       synopsys.\n\n-      Synopsys static timing analysis completed without violations.\n\n2.     Environmental Conditions\n\nThe following conditions will be tested on the device.\n\n-      Temperature testing over operating range (0C-70C)\n\n-      Voltage margining (4.75 - 5.25 V)\n\n-      Timing Verification (per specification)\n\n-            29K Bus\n\n-            Modulator\/Demodulator\n\n-            SRAM\n\n-            MACE\n\n-      Mongoose BER (Bit Error Rate)      58\n\n\n\n-      Ethernet Packet Bridging.\n\n       -      Send packets to learn source addresses. Verify bridging based on\n              learned addresses. Verify aging of old addresses and replacement\n              of oldest entries.\n\n       -      Send broadcast packets. Verify bridging based on ethertype table\n              and broadcast rate count.\n\n       -      Send packets directed to processor. Verify bridging based on local\n              MAC enable switch, MAC address table, and multicast address table.\n\n       -      Send multicast packets. Verify bridging based on multicast address\n              table.\n\n-      MACE Interface.\n\n       -      Transmit packets with MACE underruns, max collisions, and late\n              collisions. Verify detection and recovery.\n\n       -      Receive packets that had late collisions, CRC errors, alignment\n              errors, and overruns. Verify detection and recovery.\n\n-      Determine cell and frame boundaries.\n\n       -      Verify Cell delination detection.\n\n       -      Verify Frame delination detection.\n\n       -      Generate T7EI errors. Verify detection and recovery.\n\n       -      Corrupt\/change both frame and cell boundaries. Verify detection of\n              loss, reestablishment or connection, and graceful termination to\n              upstream transmission.\n\n-      Decryption of packet.\n\n       -      Decrypt OAM, AAL5 and raw ATM cells using all 10 keys based on the\n              VPI. Verify cell contents.\n\n-      Downstream packet routing.\n\n       -      Send OAM's packet and verify reception into queue 0.\n\n       -      Send good and bad CRC-10 in OAM packets. Verify mongoose\n              detection.\n\n       -      Send Raw ATM cells to queues I and 2. Verify cell contents.\n\n       -      Send AAL5 cells to queues 3, 4, &amp; 5. Verify cells contents.\n\n       -      Send good and bad CRC-32's with AAL5 packets. Verify mongoose\n              detection.\n\n-      Downstream grant queuing.\n\n       -      Send Acquisition grants. Verify detection, queuing, and random\n              backoff.\n\n       -      Send Contention grants. Verify detection, queuing and random\n              backoff. Verify transition for Acquisition to Active state.\n\n       -      Verify transition from Active to Idle state.\n\n       -      Send Directed grants. Verify state changes and proper queuing.\n\n       -      Overflow grant queue. Verify recovery.\n\n       -      Send grants with bad CRC-10's. Verify removal from queue.\n\n-      Encryption of packet.\n\n       -      Encrypt OAM, AAL5 and raw ATM cells using all 4 keys. Verify cell\n              contents.\n\n       -      Encrypt packet with decryption occurring on downstream channel.\n\n-      FEC Generation.\n\n       -      Verify FEC on upstream data. Generate bit errors and verify\n              reception at head end.\n\n-      Upstream Queues.\n\n       -      Upload multiple packets into all queues. Verify priority ordering\n              and packet boundaries.\n\n\n\n                                       58\n\n     59\n\n\n-      Upstream Cell Generation.\n\n       -      Send AAL5 Packets upstream. Verify header information, HEC,\n              CRC-32, and reassembled packet at head end.\n\n       -      Send OAM packets. Verify header information, HEC, CRC-10, and\n              payload data.\n\n       -      Send raw ATM cells. Verify data.\n\n-      Upstream traffic.\n\n       -      Verify IDLE cell Generation.\n\n       -      Verify start of frame delay.\n\n-      Ability to gracefully reset queues, MACE, and cable modem interface.\n\n-      Generate and acknowledge all interrupts.\n\n-      Read and write all processor accessible registers.\n\n4.     Test Equipment\n\nThe above testing requires the following equipment from Com21\n\n-      Latest version HCX and associated SW\n\n\n\n\n                                       59<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6537,7151],"corporate_contracts_industries":[9509,9510],"corporate_contracts_types":[9613,9619],"class_list":["post-42741","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-3com-corp","corporate_contracts_companies-com21-inc","corporate_contracts_industries-technology__networking","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42741","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=42741"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42741"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42741"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42741"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}