{"id":42743,"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-inrange-technologies-corp-and-ancor.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"reseller-agreement-inrange-technologies-corp-and-ancor","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/reseller-agreement-inrange-technologies-corp-and-ancor.html","title":{"rendered":"Reseller Agreement &#8211; Inrange Technologies Corp. and Ancor Communications Inc."},"content":{"rendered":"<pre>\n                               RESELLER AGREEMENT\n\n      THIS AGREEMENT is entered into this 29 day of OCT, 1999, by and between\nINRANGE TECHNOLOGIES CORPORATION, a Delaware corporation, located at 13000\nMidlantic Drive, Mt Laurel, New Jersey (\"Inrange\"), and ANCOR COMMUNICATIONS,\nINC., a Minnesota corporation, located at 6321 Bury Drive Suite 13, Eden\nPrairie, Minnesota 55343 (\"Purchaser\").\n\n                                   BACKGROUND\n\n      WHEREAS, Inrange is engaged in the design, manufacture, sale and servicing\nof switching, cable management and diagnostic systems and products for\ncontrolling and testing data communications, data processing, and\ntelecommunications networks; and\n\n      WHEREAS, Purchaser is a manufacturer, supplier and marketer of technical\ndevices which incorporate switching, cable management and diagnostic systems and\nproducts; and\n\n      WHEREAS, Inrange and Purchaser are parties to a Technology License\nAgreement dated September 24, 1998 (the \"Technology License Agreement\") under\nwhich Purchaser has granted to Inrange a license with respect to Purchaser's\nASICs and Ancor Technology (each, as defined in the Technology License\nAgreement); and\n\n      WHEREAS, Inrange is in the process of developing Class 2\/3 Native Fiber\nChannel 64 and 128 port switches (known as FC\/9000-64 and FC\/9000-128 and\ncontaining the features set forth on Exhibit A) which incorporate Purchaser's\nASICs and Ancor Technology (the \"Designated Inrange Products\"); and\n\n      WHEREAS, Inrange and Purchaser desire to establish, pursuant to this\nAgreement, a mutually beneficial relationship through which Purchaser will\npurchase Designated Inrange Products for disposition through third parties that\nwill sell the Designated Inrange Products under private label to end-users\n(collectively, \"OEMs\");\n\n      NOW, THEREFORE, in consideration of the mutual covenants and agreements\nstated below, the parties intending to be legally bound agree as follows:\n\n                                    ARTICLE I\n\n                                   OEM RIGHTS\n\n      1.1 Appointment. Subject to the terms and conditions of this Agreement,\nand for the term of this Agreement, Inrange hereby appoints Purchaser as a\nnon-exclusive worldwide reseller of the Designated Inrange Products to OEMs.\nPursuant to such appointment, subject only to compliance by Purchaser with the\nterms and conditions of this Agreement, Purchaser shall have the non-exclusive\nright during the term of this Agreement to sell, lease, market or otherwise\ndispose of Designated Inrange Products purchased from Inrange hereunder, but\nonly to OEMs and only under\n   2\n\nthe private label of the OEM (such products are referred to as \"Third-Party\nPrivate Label Products\") or, on a case-by-case basis subject to prior approval\nby Inrange, the private label of Purchaser (such products are referred to as\n\"Ancor Private Label Products\"). Notwithstanding anything to the contrary\ncontained herein, Purchaser shall not sell, directly or indirectly, nor deliver,\nany Designated Inrange Product in or to any country where such a sale or\ndelivery by Purchaser would be prohibited by virtue of any applicable law,\nregulation or agency ruling.\n\n      1.2 Non-Exclusivity. Purchaser acknowledges that its appointment hereunder\nas a reseller for the Designated Inrange Products is non-exclusive. Inrange\nreserves the right to appoint additional sales representatives, value added\nresellers, systems integrators, distributors or OEMs for the Designated Inrange\nProducts, and for any other products manufactured or distributed by Inrange, and\nInrange reserves the right, at any time, to sell any of the Designated Inrange\nProducts directly in each case without thereby incurring any commission or other\nobligation to Purchaser of any type or nature, except as provided in the\nTechnology License Agreement.\n\n      1.3 [Intentionally Omitted.]\n\n      1.4 Independent Purchaser Status. Purchaser is authorized to sell\nDesignated Inrange Products in such manner, at such prices and upon such terms\nas Purchaser shall determine. Purchaser is an independent purchaser and reseller\nof Designated Inrange Products. Purchaser shall not be considered an agent or\nlegal representative of Inrange for any purpose, and neither Purchaser nor any\ndirector, officer, agent or employee of Purchaser, shall be, or be considered,\nan employee or agent of Inrange for any purpose whatsoever. Purchaser is not\ngranted and shall not exercise any right or authority to assume or create any\nobligation or responsibility on behalf of or in the name of Inrange, including\nwithout limitation contractual obligations and obligations based on warranties\nor guarantees.\n\n      1.5 Operations and Expenses. Except as provided herein, the detailed\noperations of Purchaser under this Agreement are subject to the sole control and\nmanagement of Purchaser. Purchaser shall be responsible for all its own expenses\nand employees. Purchaser shall provide, at its own expense, such office space\nand facilities, and hire and train such personnel, as may be required to carry\nout its obligations under this Agreement, Purchaser agrees that it shall incur\nno expense chargeable to Inrange, except as may be specifically authorized in\nadvance in writing in each case by Inrange.\n\n      1.6 Effect on Technology License Agreement. Inrange will not be required\nto pay royalties under the Technology License Agreement for Inrange's sales of\nDesignated Inrange Products to Purchaser under this Agreement; however,\nInrange's sale of Designated Inrange Products to Purchaser under this Agreement\nwill be included in the calculation of Inrange's Minimum Market Share under\nSection 3.4 of the Technology License Agreement. In addition, any Designated\nInrange Products that Purchaser manufactures or has manufactured under the\nrights set forth in Section 6.5 will also be included in the calculation of\nInrange's Minimum Market Share under Section 3.4 of the Technology License\nAgreement. Notwithstanding anything to the contrary in this Agreement, the\nparties acknowledge and agree that this Agreement, and the parties respective\nrights and obligation hereunder, do not and will not modify in any way each\nparty's ownership of and other\n\n\n                                       2\n   3\n\nrights granted in and to the Inrange Technology, Ancor Technology and Developed\nTechnology (as those terms are defined in the Technology License Agreement), as\nexpressly set forth in the Technology License Agreement\n\n      1.7 Promotional Materials and Product Manuals. Purchaser shall have the\nright to create and distribute promotional materials and product manuals for the\nDesignated Inrange Products sold pursuant to this Agreement. As part of that\nprocess, Purchaser may modify the promotional materials and product manuals\nprovided by Inrange pursuant to Sections 4.1 and 4.2; however, such modified\nmaterials may only be used in connection with Designated Inrange Products sold\npursuant to this Agreement. Inrange shall retain all rights, including\ncopyrights, in the materials it provides to Purchaser. Also, Purchaser shall be\nresponsible for any modifications to Inrange's materials.\n\n                                   ARTICLE II\n\n                          TERMS AND CONDITIONS OF SALE\n\n      2.1 Third-Party Private Label Products. If Ancor desires to purchase a\nParty Private Label Product, it must (i) forecast that it will purchase a\nminimum of * per year of the particular Third-Party Private Label Product, (ii)\nadvise Inrange of the particular Third-Party Private Label Product customization\nrequirements (including the Federal Paint Number for the color to be used),\n(iii) afford Inrange lead-time to prepare the new private label customization,\nand (iv) pay Inrange a customization preparation fee. The customization\npreparation fee for standard lead-time (meaning 90 days or such longer time\ndesignated by Inrange for special color orders) is *. The customization\npreparation fee for expedited lead-time is *. The initial customization\npreparation fee shall be paid at the time that the particular private label\ncustomization is first requested. Thereafter, Ancor shall only be required to\npay an additional customization preparation fee for the Third-Party Private\nLabel Product if Ancor requests changes in the customization requirements in\nthat Third-Party Private Label Product. Such additional customization\npreparation fee shall be paid at the time that the changes are first requested.\nPrivate label customization shall include only the following features: (a)\nreplacement of the Inrange logo in its customary placement with the private\nlabel, (b) replacement of the Inrange corporate name in its customary placement\nwith the customer's name, (c) one designated color paint for the switch cabinet,\n(d) generic model\/serial number label, (e) certification\/approval agency labels,\nand (f) accessory kit composed of two loopback plugs.\n\n      2.2 Ancor Private Label Products. Ancor Private Label Products will not be\nsubject to customization lead-time or any customization preparation fee. All\nAncor Private Label Products will include the private label customization\nfeatures described in Section 2.1 and will be a single color, to be designated\nby Ancor.\n\n      2.3 Firm Purchase Orders. All orders for Designated Inrange Products\nplaced by Purchaser hereunder shall be evidenced by the Purchaser's firm\npurchase order and shall be subject to all of the provisions set forth in this\nAgreement. By placing each order, the Purchaser confirms its agreement with and\nacceptance of all such terms and conditions. In the event of any discrepancy\nbetween the provisions set forth herein, on the one hand, and any purchase\norder, order confirmation,\n\n* Confidential treatment requested with respect to this information.\n\n\n                                       3\n   4\n\nor other communication between the parties, whether or not acknowledged by the\nother party, on the other hand, the provisions hereof shall prevail. In\naddition, any additional terms contained in any purchase order, order\nconfirmation or other communication between the parties, whether or not\nacknowledged by the other party, shall not be binding on either party unless\nsuch additional terms are expressly accepted in writing by both parties. No\norder for any Designated Inrange Product placed by Purchaser hereunder shall be\nbinding on Inrange unless, and until, accepted by Inrange. Within five (5)\nbusiness days after the receipt of a Purchaser's purchase order hereunder,\nInrange shall either provide a written acknowledgement of acceptance of the\npurchase order or written objections to the purchase order. If Inrange fails to\nprovide any such written acknowledgment or objection within five (5) business\ndays of its receipt of any Purchaser's purchase order hereunder, the purchase\norder shall be deemed to be rejected by Inrange and of no further force and\neffect. Purchase orders shall provide details sufficient to identify the\ncustomer, the applicable customized features, and the shipping instructions.\n\n      2.4 Prices. The prices charged to Purchaser for the Designated Inrange\nProducts shall be as set forth in Schedule 2.4 hereof; the parties shall\nmutually agree upon an amendment to said Schedule which will finalize the\npricing for the FC\/9000-128 products. Such prices shall remain firm for the term\nof this Agreement. The prices set forth in Schedule 2.4 are predicated on\nRelease 1 of the Designated Inrange Products being generally available for\ndistribution on or before * and Release 2 of the Designated Inrange Products\nbeing generally available for distribution on or before * (each, a \"General\nAvailability Date\"). For each full month prior to its General Availability Date\nthat a Designated Inrange Product is made generally available for purchase, the\nprice for such Designated Inrange Product under this Agreement will be subject\nto a discount of *% This discount will only apply during the 12-month period\ncommencing upon the applicable accelerated General Availability Date.\nNotwithstanding the foregoing, Ancor may request concessions in the prices for a\nThird-Party Private Label Product if Ancor's volume for that Third-Party Private\nLabel Product exceeds * chassis in a 12-month period. If Ancor is entitled to\nand does request a concession in prices as described above, the parties shall\nnegotiate in good faith to reach a revised price based on the applicable volume.\n\n      2.5 Payment Terms. All prices are expressed, and shall be payable, in\nUnited States Dollars. Payment terms shall be net thirty (30) days from the date\nof invoice. Inrange shall issue invoices upon shipment. To the extent Purchaser\nshall fail to make payments as specified in this Agreement, or if for any other\nbona fide reason Inrange deems itself to be insecure as to payment, Inrange may\ndemand that Purchaser make full or partial payment in advance, open for\nInrange's benefit irrevocable documentary letters of credit, obtain for\nInrange's benefit bank guaranties, provide current financial statements for\nPurchaser, and\/or provide other satisfactory security or guaranties that\ninvoices will be promptly paid when due. All Designated Inrange Products sold\nhereunder shall be invoiced to Purchaser, and Purchaser shall be responsible for\ninvoicing its customer. Inrange reserves the right to charge interest at one and\none half percent (1.5%) per month on any unpaid balance owing by Purchaser from\nthe date on which the unpaid balance was due to Inrange.\n\n      2.6 Delivery\/Shipment.\n\n      * Confidential treatment requested with respect to this information.\n                                       4\n   5\n            2.6.1 Shipment Schedules. Inrange will ship Designated Inrange\nProducts to Purchaser or to Purchaser's OEM, as indicated in the purchase order.\nInitial orders of Third-Party Private Label Products (including initial orders\nafter a change in customization requirements) will be shipped within * . Other\norders of Third-Party Private Label Products will be shipped within * . All\norders of Ancor Private Label Products will be shipped within * .\n\n            2.6.2 U.S. Domestic. For all orders for shipment of Designated\nInrange Products hereunder to destinations within the U.S. 48 contiguous states,\nall prices are stated, and all Designated Inrange Products purchased by\nPurchaser from Inrange hereunder shall be shipped, F.O.B. [Factory]. All\ntransportation, insurance and handling charges for Designated Inrange Products\nso shipped shall be borne by Purchaser.\n\n            2.6.3 International. For all orders for shipment of Designated\nInrange Products by Inrange hereunder from the U.S. to a destination outside the\nU.S. 48 contiguous states, shipping tents shall be Ex works (Factory). For all\nshipments from the U.S. to foreign destinations, title to all Designated Inrange\nProducts shall pass outside the U.S. Customs territory.\n\n      2.7 Cancellation of Ordered Products. All Designated Inrange Products\nordered hereunder are considered customized products. After Purchaser has\nreceived notice from Inrange of acceptance of an order but prior to the\noriginally scheduled shipment date, Purchaser will be able to cancel, reduce,\nreconfigure or reschedule the order without the prior written consent of\nInrange; provided, however, that Purchaser shall not do so unreasonably and that\nany such action shall be subject to the payment requirements set forth in this\nSection. Purchaser shall not have the right to take any such action after the\norder has been shipped. If, during the period beginning * and ending * prior to\nthe original shipment date, Purchaser cancels an order, reduces an order by more\nthan *% or reschedules an order for shipment more than * after the original\nshipment date, Purchaser shall pay a charge equal to *% of the purchase price\nfor the affected Designated Inrange Products. If, during the period beginning *\nand ending one day prior to the original shipment date, Ancor cancels an order,\nreduces an order by more than * or reschedules an order for shipment more than *\nafter the original shipment date, Ancor shall pay a charge equal to *% of the\npurchase price for the affected Designated Inrange Products. If, during the\nperiod beginning * and ending one day prior to the original shipment date, Ancor\nreduces an order up to *%, reconfigures an order, or reschedules an order for\nshipment * or less after the original shipment date, Ancor shall pay a charge\nequal to *% of the purchase price for the affected Designated Inrange Product.\nExcept as provided above, Ancor shall not be required to pay any additional\ncharge in connection with a cancellation, reduction, reconfiguration or\nreschedule of an order.\n\n      2.8 Warranties.\n\n            2.8.1 All sales to Purchaser shall be subject to Inrange's warranty\nattached as Schedule 2.8 hereto. Except for permitted modifications to the\nSoftware as described in Sections 2.16 and 2.17, Purchaser agrees that it shall\nnot in any way alter the Designated Inrange Products (nor the parts or\ncomponents thereof) without the prior written authorization of Inrange, nor make\nany warranty or representation other than those contained in Inrange's warranty.\nAny warranty given\n\n* Confidential treatment requested with respect to this information.\n\n                                       5\n   6\n\nby Purchaser with respect to Designated Inrange Products that have been altered\nwithout prior authorization of Inrange or any such additional warranty or\nrepresentation shall be void. Claims by Purchaser in regard to any defect in any\nDesignated Inrange Product shall be made pursuant to claims procedures set forth\nin the warranty and this Agreement.\n\n            2.8.2 Inrange further warrants that it shall convey good title to\nall Designated Inrange Products sold to Purchaser, free of all security\ninterests, liens and encumbrances, but subject to any licenses for third-party\nsoftware included in the Designated Inrange Products.\n\n      2.9 Disclaimer of Warranties. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND\nIN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT\nNOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR\nPURPOSE.\n\n      2.10 Limitation of Liability.\n\n            2.10.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER (OR\nSHALL INRANGE BE LIABLE TO ANY PURCHASER OR END USER OF ANY DESIGNATED INRANGE\nPRODUCT) FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT\nDAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, INJURIES TO\nPROPERTY, LOSS OF USE OF ANY DESIGNATED INRANGE PRODUCT OR ANY ASSOCIATED\nEQUIPMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED THAT THE POSSIBILITY OF\nSUCH LOSS, AND WHETHER THE CLAIM IS FOR BREACH OR REPUDIATION OR CONTRACT, TORT,\nBREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE.\n\n            2.10.2 EXCEPT FOR INDEMNIFICATION CLAIMS UNDER SECTION 2.18,\nINRANGE'S AND PURCHASER'S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF\nTHESE TERMS AND CONDITIONS OR SALE AND\/OR SALE OR USE OF A DESIGNATED INRANGE\nPRODUCT SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE PRICE OF THE AFFECTED\nDESIGNATED INRANGE PRODUCT.\n\n            THE ESSENTIAL PURPOSE OF THIS SECTION 2.10 IS TO LIMIT THE POTENTIAL\nLIABILITY OF THE PARTIES ARISING OUT OF THESE TERMS AND CONDITIONS OF SALE, THE\nPURCHASE AND SALE OF DESIGNATED INRANGE PRODUCTS HEREUNDER, AND ARE DESIGNATED\nINRANGE PRODUCTS SOLD HEREUNDER.\n\n      2.11 Liability Insurance. Each party shall maintain in effect appropriate\nliability (including product liability) insurance policies with a recognized\ncarrier providing for coverage of not less than two million U.S. Dollars\n($2,000,000). Upon written request, Purchaser shall provide to Inrange a\ncertificate of insurance evidencing the above coverage.\n\n      2.12 Claims Procedure. Any claim against Inrange for shortages in or\ndamages to any Designated Inrange Product shipped to Purchaser shall be made in\naccordance with Inrange's\n\n\n   \n    \n                                       6\n   7\n\nstandard procedures and other written instructions conveyed to Purchaser by\nInrange from time to time. Any other claims against Inrange arising out of\nDesignated Inrange Products sold to Purchaser shall be made within ninety (90)\ndays after Purchaser first knows or has reason to know of such claim. All such\nclaims shall be submitted to Inrange in writing and shall set forth in full the\ndetails, basis, and amount of such claim against Inrange. Failure by Purchaser\nto provide proper documentation to support an insurance claim that then results\nin total or partial denial of coverage shall render Purchaser liable to Inrange\nfor all amounts unpaid.\n\n      2.13 Product Modification or Discontinuance. Inrange will include\nPurchaser in its engineering change order (\"ECO\") process with respect to the\nDesignated Inrange Products; however, Purchaser will not have any approval\nrights with respect to Inrange's ECO process. Inrange may at any time make\nchanges in any Designated Inrange Product (whether in design, material, the\naddition of improvements, or otherwise) and may discontinue the manufacture of\nany Designated Inrange Product, all in its sole discretion, without incurring\nany obligation of any kind as a result thereof. Inrange shall notify Purchaser\nwith as much advance notice as possible of changes to form, fit or function\nwhich affect the Designated Inrange Products or the private label customization\nfeatures. Purchaser may request a delay in the implementation of a change to\nform, fit or function in response to specific requirements from a customer, and\nInrange shall use reasonable efforts to accommodate such request; provided,\nhowever, in no circumstance will Inrange be required to support any version of a\nDesignated Inrange Product other than the then-current version, the two\nimmediately preceding software versions, and the one immediately preceding\nhardware version. Inrange shall notify Purchaser six (6) months in advance of\nits discontinuance of the manufacture of any of the Designated Inrange Products,\nand shall use reasonable efforts to support any discontinued Designated Inrange\nProducts for three (3) years after the sale. Purchaser may request an extension\nof the support period in response to specific requirements from a customer, and\nInrange shall use reasonable efforts to accommodate such request; provided,\nhowever, in no circumstance will Inrange be required to support any version of a\nDesignated Inrange Product other than the then-current version, the two\nimmediately preceding software versions, and the one immediately preceding\nhardware version.\n\n            Purchaser will include Inrange in its ECO process with respect to\nthe Designated Inrange Products; however, Inrange will not have any approval\nrights with respect to Purchaser's ECO process. Purchaser shall notify Inrange\nwith as much advance notice as possible of changes to form, fit or function\nwhich affect the Designated Inrange Products or the private label customization\nfeatures. Within five (5) business days of Inrange's receipt of a requested\nchange from Purchaser, Inrange will respond to Purchaser with a projected cut-in\ndate.\n\n      2.14 Offsets. Any credits, allowances, or other amounts payable or\ncreditable to Purchaser by Inrange shall be subject to offset for any claims or\nother amounts owed by Purchaser to Inrange pursuant to the provisions hereof or\notherwise.\n\n      2.15 Security. As security for payment and performance of all of\nPurchaser's obligations and liabilities to Inrange under this Agreement,\nPurchaser grants to Inrange a security interest in all of the Designated Inrange\nProducts acquired by Purchaser pursuant to this Agreement, and in all proceeds\nof any such Designated Inrange Products. Upon request by Inrange, Purchaser\nagrees to\n\n\n                                       7\n   8\n\nexecute and deliver to Inrange any and all financing statements or other\ninstruments or documents reasonably necessary in order to establish, perfect, or\nmaintain such security interests.\n\n      2.16 Software License. Designated Inrange Products delivered by Inrange\nhereunder may contain or require the use of separable Software (the \"Software\"),\nwhich is defined herein to include (i) computer programs consisting of\nhard-wired logic instructions and\/or instruction sequences in machine-readable\ncode, contained on a magnetic tape, diskette, semiconductor device or other\nmemory device or system memory which provides basic logic, operating\ninstructions and user-related application instructions and (ii) documentation\nused to describe, maintain and use the programs. Inrange and Purchaser\nacknowledge and agree that such Software includes Ancor Technology, Inrange\nTechnology and Developed Technology, which technologies are owned by Inrange\nand\/or Purchaser as stated in the Technology License Agreement. Notwithstanding\nany other provisions of this Agreement and\/or reference to \"sale\" of Designated\nInrange Products in this Agreement or Inrange's terms and conditions, the title\nto, and ownership of, the Software shall remain in Inrange; provided, however,\nthat Inrange's and Purchaser's respective rights with respect to all Ancor\nTechnology, Inrange Technology and Developed Technology (even if included in the\nSoftware) shall be as stated in the Technology License Agreement notwithstanding\nInrange's ownership of the compilation of all such technologies as embodied in\nthe Software.\n\n            Inrange hereby grants to Purchaser a personal, non-exclusive,\nnon-assignable license to distribute and sublicense to Purchaser's OEMs and\ntheir end users the object code for the Software for use solely in connection\nwith the Designated Inrange Products sold pursuant to this Agreement and subject\nto Inrange's standard software license terms (which terms shall not apply to any\nAncor Technology or Developed Technology except as those technologies are\nembodied in the Software).\n\n            Inrange further grants to Purchaser a personal, non-exclusive,\nnon-assignable license to use, modify, create derivative works from, port,\nintegrate and translate the source code for the Software for use solely in\nconnection with the Designated Inrange Products sold pursuant to this Agreement\nand subject to reasonable restrictions imposed by Inrange for protection of its\nsource code. Inrange further grants to Purchaser's OEMs the right to modify the\nsource code for the Software as required to perform private label customization\n(i.e. change of logo and name) of the Software solely in connection with the\nsale of Designated Inrange Products pursuant to this Agreement and subject to\nreasonable restrictions imposed by Inrange for protection of its source code. On\na case-by-case basis, at Purchaser's request, Inrange will consider extending to\nPurchaser the right to sublicense Purchaser's OEM to use, modify, and create\nderivative works from the source code for the Software for use solely in\nconnection with the Designated Inrange Products sold pursuant to this Agreement.\nThe grant of such right to sublicense shall be subject to reasonable\nrestrictions imposed by Inrange for protection of its source code.\nNotwithstanding the foregoing, the parties acknowledge and agree that the\nSoftware may include certain third-party software and that Purchaser's rights\nwith respect to the source code for the Software will not extend to any such\nthird-party software.\n\n            Inrange will not be responsible for any errors arising from the\ncontent of those portions of the Software modified by Purchaser or any errors in\ncompilation arising from Purchaser's modification of the Software. Purchaser\nwill pay to Inrange, in addition to any other fees payable\n\n\n                                       8\n   9\n\nunder this Agreement, the cost of any license fees or charges related to any\nthird-party software included in the Software if Purchaser elects to have\nInrange deliver to Purchaser such third-party software as part of the Software.\n\n            All rights, including copyrights, in the Software shall be retained\nby Inrange (subject to Purchaser's ownership rights in and to the Ancor\nTechnology and Developed Technology embodied in the Software), and Purchaser\nshall not have any right to copy or use the Software (whether modified or\nunmodified) except as provided in this Agreement. Notwithstanding anything to\nthe contrary herein, Purchaser's rights to use, modify, distribute and create\nderivative works of the Ancor Technology and Developed Technology, as stated in\nthe Technology License Agreement, shall not be restricted or prohibited in any\nway by this Agreement, even if such Ancor Technology and Developed Technology is\nalso embodied in the Software; however, Purchaser's actions with respect to the\nSoftware itself shall be in accordance with this Agreement\n\n            If Purchaser's OEMs or their end user need support for\nmodifications, integration, interface or new features, Purchaser may request\nthat Inrange provide such support for a mutually acceptable NRE charge. Inrange\nwill use its reasonable efforts to accept reasonable requests by Purchaser for\ncustomer customization requirements.\n\n            Purchaser agrees further to enter into sub-license agreements with\nits OEMs and to cause its OEMs to enter into sub-license agreements with their\nend users, which, at a minimum, provide that (a) OEM or end user will keep\nconfidential and protect the Software and associated documentation from\nunauthorized disclosure; (b) any reproduction of the Software shall be solely\nfor backup or archival purposes; (c) except as authorized in this Section 2.16,\nOEM or end user will not modify or attempt to modify the Software without the\nwritten consent of Inrange; (d) no transfer of title to the Software to OEM or\nend user shall be deemed to have occurred by virtue of such sub-license; and (e)\nthe end user will use the Software solely in connection with the Designated\nInrange Products sold pursuant to this Agreement and for its internal business\npurposes.\n\n      2.17 Modification of Inrange's Java\/Browser Control Software. As part of\nthe license to the Software described in Section 2.16, Inrange grants to\nPurchaser a license to modify that portion of Inrange's Java\/Browser Control\nSoftware (the \"JBC Software\") which is based on Purchaser's source code and\nincluded in the Designated Inrange Products, but solely for the purpose of (i)\nreplacing Inrange logos and name references with the logos and name references\nof Purchaser or Purchaser's OEMs, as applicable, and revising pictures and\ndiagrams to conform to the private label customization features of the\nDesignated Inrange Products or (ii) modifying and creating derivative works of\nthe Ancor Technology and Developed Technology embodied in the JBC Software\nsolely for use in connection with Designated Inrange Products sold pursuant to\nthis Agreement. Purchaser will furnish the modified JBC Software files to\nInrange, and Inrange will produce the modified JBC Software for shipment with\nthe Designated Inrange Products. Inrange's obligation with respect to the JBC\nSoftware will be limited to error-free compilation of the unmodified Inrange\nportion. Inrange will not be responsible for any errors arising from the content\nof those portions of the JBC Software modified by Purchaser or any errors in\ncompilation arising from Purchaser's modification of the JBC Software. Purchaser\nwill pay to Inrange, in addition to any other fees payable under this Agreement,\nthe cost of any license fees or charges related to any third-party software\nincluded in the\n\n\n                                       9\n   10\n\nJBC Software if Purchaser elects to have Inrange deliver to Purchaser such\nthird-party software as part of the JBC Software.\n\n            All rights, including copyrights, in the JBC Software shall be\nretained by Inrange (subject to purchaser's ownership rights in and to the Ancor\nTechnology and Developed Technology embodied in the JBC Software), and Purchaser\nshall not have any right to copy or use the JBC Software (whether modified or\nunmodified) except as provided in this Agreement. Notwithstanding anything to\nthe contrary herein, Purchaser's rights to use, modify, distribute and create\nderivative works of the Ancor Technology and Developed Technology, as stated in\nthe Technology License Agreement, shall not be restricted or prohibited in any\nway by this Agreement, even if such Ancor Technology and Developed Technology is\nalso embodied in the JBC Software; however. Purchaser's actions with respect to\nthe JBC Software itself shall be in accordance with this Agreement.\n\n      2.18 Indemnification.\n\n            2.18.1 Inrange shall defend, indemnify and hold harmless Purchaser\nits officers, directors, employees, successors, and assigns, against any losses,\ndamages, or expenses of whatever form or nature, including attorneys' fees and\nother costs of legal defense that they, or any of them, may sustain or incur as\na result of any third party suit, proceeding, claim or other legal action\n(collectively. \"Third Party Action\") insofar as such Third Party Action is based\non a claim that a Designated Inrange Product or its use, manufacture (as\nprovided in Section 6.5), import or sale as permitted hereunder, constitutes an\ninfringement of any issued United States patent or copyright. The foregoing\nindemnification obligation of Inrange shall be subject to (i) Purchaser promptly\nnotifying Inrange of any such Third Party Action and furnishing Inrange a\ncomplete copy of each communication, notice or other action relating to the\nalleged infringement. (ii) Inrange being given authority, information and\nreasonable assistance necessary to settle, compromise or litigate such Third\nParty Action, and (iii) no settlement of any Third Party Action being made\nwithout the express permission of Inrange. If the Designated Inrange Product is\nheld in any such Third Party Action to infringe and the use of the Designated\nInrange Product is enjoined, or in the case of a settlement as described above,\nInrange shall, at its own expense, either procure for Purchaser a right to\ncontinue using the Designated Inrange Product or replace same with a\nnoninfringing Designated Inrange Product, or modify same to make it\nnoninfringing, or, if Inrange cannot reasonably accomplish one of the foregoing\nremedies, refund the depreciated value of the Designated Inrange Product and\naccept the return of same.\n\n            2.18.2 Inrange shall not be obligated to defend or be liable for\ncosts and damages if infringement as described in this Section arises out of (i)\ncompliance with Purchaser's specifications, (ii) incorporation of any Ancor\nTechnology in the Designated Inrange Product, (iii) any combination or use of\nthe Designated Inrange Product with materials or technology not furnished by\nInrange if such infringement would have been avoided by use of the Designated\nInrange Product alone, (iv) a modification of the Designated Inrange Product\nafter delivery by Inrange if the infringement would have been avoided without\nsuch modification, or (v) other fault or action of Purchaser. In any of these\ncases, Purchaser will indemnify and defend Inrange on the basis described in the\npreceding\n\n\n                                       10\n   11\n\nsubsection. Inrange may decline to make further shipments to Purchaser under\nthis Agreement if infringement caused by any such action of Purchaser has been\nalleged or has occurred.\n\n            2.18.3 The foregoing states the entire liability of Inrange for\npatent, copyright, or other intellectual property infringement by The Designated\nInrange Products furnished hereunder. The obligations under this Section shall\nsurvive the termination of this Agreement for any reason.\n\n                                   ARTICLE III\n\n                            OBLIGATIONS OF PURCHASER\n\n      3.1 Sales Promotion. Purchaser shall use its best efforts, consistent with\nits business plan, to promote the sale of the Designated Inrange Products to all\npotential customers and will cooperate with users of the Designated Inrange\nProducts. For that purpose, Purchaser shall conduct the following activities:\n\n            3.1.1 Forecast and Market Analysis: Purchaser shall provide Inrange\nwith:\n\n                  (a) a rolling 12-month forecast of sales, to be received by\n            Inrange no later than the last day of each calendar quarter;\n\n                  (b) immediate notice of any material changes in Purchaser's\n            quarterly forecast of sales; and\n\n                  (c) updates on any material developments in the business and\n            marketing conditions in the industry which could reasonably be\n            expected to affect the sale of Designated Inrange Products to\n            customers and prospective customers.\n\n      3.2 Promotional Materials. Purchaser shall maintain an adequate inventory\nof promotional materials and shall use such materials in an efficient and\neffective manner to promote the sale of the Designated Inrange Products in the\nTerritory. Any modifications to Inrange promotional materials shall be subject\nto Section 1.7.\n\n      3.3 Product Manuals. Purchaser shall create and maintain an adequate\ninventory of product manuals and shall include a product manual with each sale\nof a Designated Inrange Product. Any modifications to Inrange product manuals\nshall be subject to Section 1.7.\n\n      3.4 Sales Policies. Purchaser shall, at all times, conduct business in the\nmanner that will reflect favorably upon the Designated Inrange Products and\nInrange. Purchaser shall not make any false or misleading representations\nconcerning the Designated Inrange Products, or make any representations\nconcerning the Designated Inrange Products' specifications, features,\ncapabilities and applicable manufacturer warranties which are not consistent\nwith those set forth in the product descriptions or promotional materials\ndelivered by Inrange to Purchaser hereunder.\n\n\n                                       11\n   12\n\n      3.5 Support. Unless otherwise agreed in writing by Inrange, Purchaser\nshall, at its expense, provide all customer service, installation and\nmaintenance services, and technical support of the Designated Inrange Products\nsold by it. Inrange will only provide direct support to Purchaser's customers,\non a special-request basis, subject to Inrange's reasonable acceptance of such\nrequest and to terms reasonably acceptable to Inrange.\n\n      3.6 Governmental Approvals and Compliance. Purchaser shall, at its\nexpense, obtain all registrations, licenses and permits required to perform its\nobligations, pay all taxes and fees due in connection therewith, and comply with\nany and all applicable laws, regulations, and orders. Purchaser shall furnish\nInrange with such documentation as Inrange may request to confirm Purchaser's\ncompliance with this Section 3.6 and agrees that it shall not engage in any\ncourse of conduct that, in Inrange's reasonable belief, would cause Inrange to\nbe in violation of the laws of any jurisdiction. Any breach of the provisions of\nthis Section 3.6 shall be deemed a material breach of this Agreement.\n\n      3.7 [Intentionally Omitted.]\n\n      3.8 Questionable Payments. Purchaser certifies that neither it, nor any of\nits directors, officers, employees, or agents is an official, agent, or employee\nof any government or governmental agency or political party or a candidate for\nany political office on the date of this Agreement. Purchaser shall promptly\nnotify Inrange of the occurrence of any event that would or may result in an\nexception to the foregoing representation. Purchaser shall not, directly or\nindirectly, in the name of, on behalf of, or for the benefit of Inrange offer,\npromise or authorize to pay, or pay, any compensation, or give anything of value\nto, any official, agent or employee of any government or governmental agency, or\nto any political party or officer, employee, or agent thereof. Any breach of the\nprovisions of this Section 3.8 shall be deemed a material breach of this\nAgreement and, if such breach is not susceptible to a cure, shall entitle\nInrange to terminate this Agreement effective immediately on notice to\nPurchaser.\n\n      3.9 Exclusivity. Purchaser acknowledges and agrees (i) that the Designated\nInrange Products under this Agreement fall within the scope of \"Inrange\nProducts\" described in Section 2.2 of the Technology License Agreement and (ii)\nthat Purchaser's breach of Section 2.2 of the Technology License Agreement with\nrespect to a Designated Inrange Product shall be deemed to be a material breach\nof this Agreement. This Section is not intended to impose additional\nrestrictions on the distribution of Designated Inrange Products beyond those\notherwise set forth in this Agreement.\n\n      3.10 Competitive Fibre Channel Switch. Inrange shall give Purchaser\nwritten notice of Inrange's intention to offer for sale any fibre channel switch\nthat is competitive with the Designated Inrange Product at least twelve (12)\nmonths prior to Inrange's first offer of such switch for sale. Purchaser shall\ngive Inrange written notice of Purchaser's intention to offer for sale any fibre\nchannel switch that is competitive with the Designated Inrange Product at lease\ntwelve (12) months prior to Purchaser's first offer of such switch for sale.\n\n\n                                       12\n   13\n\n      3.11 Indemnification. Purchaser shall indemnity, defend, and hold harmless\nInrange, its officers, directors, employees, successors, and assigns, against\nany losses, damages, or expenses of whatever form or nature, including\nattorneys' fees and costs of legal defense, that they, or any of them may\nsustain or incur as a result of any third parry suit, proceeding, claim or other\nlegal action (collectively, \"Third Party Action\") insofar as such Third Party\nAction is based on a claim (a) that Purchaser has breached this Agreement, (b)\nthat Purchaser has made any representations or warranties with respect to the\nDesignated Inrange Products that are inconsistent with or in addition to\nInranges' standard warranties on the Designated Inrange Products, (c) of any\ndefect arising from or related to the intention of Purchasers' ASICs in or with\nthe Designated Inrange Products caused by Purchaser, or (d) caused by a\nmodification of the Designated Inrange Product after delivery by Inrange. The\nforegoing Indemnification obligation of Purchaser shall be subject to (1)\nInrange promptly notifying Purchaser of any such Third Parry Action and\nfurnishing Purchaser a copy of each communication, notice or other action\nrelating to the claim, (2) Purchaser being given authority, information, and\nreasonable assistance necessary to settle, compromise or litigate such Third\nParty Action, and (3) no settlement of any Third Party Action being made without\nthe express written permission of Purchaser.\n\n      3.12 Spares. Purchaser shall maintain an inventory of spares sufficient to\nfulfill its support obligations under this Agreement.\n\n      3.13 Use of Parts and Components. Purchaser shall not sell or use any\nparts or components of a Designated Inrange Product except in connection with\nthe sale of a Designated Inrange Product pursuant to this Agreement.\n\n                                   ARTICLE IV\n\n                             OBLIGATIONS OF INRANGE\n\n      4.1 Promotional Materials. Inrange shall provide Purchaser with electronic\nversions of certain promotional materials as designated by Inrange for the\nDesignated Inrange Products in \"Framemaker\" programing format to enable\nPurchaser to modify these materials to conform to the private label\ncustomization features provided for in this Agreement. Any modifications to the\nmaterials provided by Inrange shall be subject to Section 1.7.\n\n      4.2 Product Manuals. Inrange shall provide Purchaser with electronic\nversions of product manuals for the Designated Inrange Products in \"Framemaker\"\nprograming format to enable Purchaser to modify these manuals to conform to the\nprivate label customization features provided for in this Agreement. Any\nmodifications to the manuals provided by Inrange shall be subject to Section\n1.7.\n\n      4.3 [Intentionally Omitted.]\n\n      4.4 Assistance. Inrange shall provide Purchaser with reasonable access to\nthird level telephonic assistance by Inrange's technical personnel. Such\ntelephone assistance shall be available\n\n\n                                       13\n   14\n\ndirectly during normal business hours and by pager 24 hours per day, seven days\nper week. Such telephone assistance shall be requested by Purchaser only after\nit has reasonably attempted all other means to remedy the customer problem. Such\ntelephone assistance and any necessary follow-up assistance shall be provided in\naccordance with Schedule 4.4 and shall be without charge to Purchaser except as\nmay be otherwise mutually agreed. Inrange may provide on-site support on terms\nmutually agreed by the parties. Inrange shall have no obligation to provide\nassistance to Purchaser's customers or to end users unless mutually agreed by\nthe parties based on a specific request by Purchaser.\n\n      4.5 Training. Inrange will provide, and Purchaser will cause its personnel\nto attend, such technical, sales and service training sessions with respect to\nthe Designated Inrange Products as the parties deem necessary to enable\nPurchaser to effectively market, sell and support the Designated Inrange\nProducts; provided, however, Inrange, in its sole discretion, will determine the\nreasonableness of the number of training sessions during any 12-month period\n(but in no case will the number of training sessions during any 12-month period\nbe fewer than three sessions. Such training will be provided for no fewer than *\nPurchaser personnel and no more than * Purchaser personnel at any one time. Such\ntraining will be provided at Inrange's designated training site, at times\nmutually agreeable to the parties, without charge to Purchaser. At Purchaser's\nrequest, Inrange will provide such training at Purchaser's designated training\nsite, at times mutually agreeable to the parties, but in such case Purchaser\nwill reimburse Inrange for the actual travel and living expenses of Inrange\npersonnel delivering the training as well as incidental expenses associated with\nthe training.\n\n            If Purchaser requests training in addition to the training described\nin the first paragraph of this Section, Inrange will provide such training at\nInrange's designated training site, at times mutually agreeable to the parties,\nat Inrange's then-current rate (currently, * per student). Each such additional\ntraining class is subject to a minimum fee equivalent to the cost of * students,\nand the maximum class size for such additional training classes will be *\nstudents. At Purchaser's request, Inrange will provide such additional training\nclasses at Purchaser's designated site, at times mutually agreeable to the\nparties, but in such case, in addition to the additional training charges\npayable by Purchaser, Purchaser will also reimburse Inrange for the actual\ntravel and living expenses of Inrange personnel delivering the training, as well\nas incidental expenses associated with the training.\n\n      4.6 [Intentionally Omitted.]\n\n      4.7 Extended Warranty. Inrange will make available an extended warranty\nfor Designated Inrange Products (providing for factory repair service at\nInrange's factory) on terms and at the prices set forth in Schedule 2.4.\n\n      4.8 Out-Of-Warranty Factory Repair Service. Inrange will make available\nfactory repair service for Designated Inrange Products that are no longer\ncovered by the warranty at Inrange's factory at rates equal to *% of the\nDesignated Inrange Product prices set forth in Section 2.4.\n\n*Confidential treatment requested with respect to this information.\n\n                                       14\n   15\n\n      4.9 No Additional Obligations. Except for the foregoing obligations, and\nthe repair or replacement obligations set forth in its warranty, Inrange shall\nhave no other support, maintenance or repair obligations.\n\n      4.10 Spares. Inrange will make available to Purchaser, for maintenance\npurposes, a reasonable number of spare Designated Inrange Products for a period\nof three (3) years after the date of the last sale of the Designated Inrange\nProduct by Inrange. Purchaser may request an extension of this three-year period\nin response to specific requirements from its customers, and Inrange shall use\nreasonable efforts to accommodate such customer requirements; provided, however,\nin no circumstance will Inrange be required to support any version of a\nDesignated Inrange Product other than the then-current version, the two\nimmediately preceding software versions, and the one immediately preceding\nhardware version.\n\n      4.11 Software Updates. Inrange will provide to Purchaser any and all\nupdates to and\/or new releases of Software for the Designated Inrange Products\nwithin 60 days of the completion of Inrange's Beta test Such updates and\/or new\nreleases shall be subject to the licenses set forth in Section 2.16.\n\n                                    ARTICLE V\n\n                 CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS\n\n      5.1 Confidential Information: All Confidential Information (as defined in\nSection 5.2 below) shall be deemed confidential and proprietary to the party\ndisclosing such information hereunder. Each party may use the Confidential\nInformation of the other party during the term of this Agreement only as\npermitted or required for the receiving party's performance hereunder. The\nreceiving party shall not disclose or provide any Confidential Information to\nany third party, other than as permitted or required for the receiving party's\nperformance hereunder, and shall take reasonable measures to prevent any\nunauthorized disclosure by its employees, agents, contractors or consultants\nduring the term hereof including appropriate individual nondisclosure\nagreements. The foregoing duty shall survive any termination or expiration of\nthis Agreement for a period of five (5) years.\n\n      5.2 Definition. As used in this Agreement, the term \"Confidential\nInformation\" shall mean (a) all information designated by a party as\nconfidential in which is disclosed by Purchaser to Inrange, or is disclosed by\nInrange to Purchaser, (b) all information embodied in the Designated Inrange\nProduct, regardless of the form in which it is disclosed, (c) the source code\nfor the Software, and (d) any information relating to know-how, markets,\ncustomers, products, patents, inventions, procedures, methods, designs,\nstrategies, plans, development efforts, assets, liabilities, prices, costs,\nrevenues, profits, organization, employees, agents, resellers or business in\ngeneral, or, the algorithms, programs, user interfaces and organization of the\ndisclosing parties's products. Notwithstanding anything to the contrary in this\nArticle V, nothing herein shall affect the confidentiality obligations of the\nparties under the Technology License Agreement. Without limiting the generality\nof the foregoing, this Article V shall not impose any additional confidentiality\n\n\n                                       15\n   16\n\nobligations on the parties with respect to the Ancor Technology or Developed\nTechnology other than those stated in the Technology License Agreement.\n\n      5.3 Exclusions. The following shall not be considered Confidential\nInformation for purposes of this Article V: (a) information which is or becomes\nin the public domain through no fault or act of the receiving party; (b)\ninformation which was independently developed by the receiving party without the\nuse of or reliance on the disclosing parties' Confidential Information; (c)\ninformation which was provided to the receiving party by a third party under no\nduty of confidentiality to the disclosing party; or (d) information which is\nrequired to be disclosed by law, provided, however, prompt prior notice thereof\nshall be given to the party whose Confidential Information is involved.\n\n      5.4 [Intentionally Omitted]\n\n      5.5 Trademark and Tradenames. Neither party shall directly or indirectly\nuse any of the other party's trademarks, trade names or part thereof, or any\nmark or name confusingly similar thereto, as part of its corporate or business\nname or in any other manner, except that (a) Purchaser may identify itself as an\nauthorized purchaser of Inrange, and (b) on Inrange's written consent the\nPurchaser may use Inrange's trademarks relating to the Designated Inrange\nProducts for display purposes in connection with solicitation of orders for\nDesignated Inrange Products from OEMs and in any other manner previously\napproved by Inrange in writing. All resulting use of such trademarks shall inure\nsolely to the benefit of the party that owns such trademarks. In addition,\nneither party shall register any of the other party's trademarks or any mark or\nname closely resembling them, unless requested to do so by the other party in\nwriting.\n\n      5.6 Protection of Proprietary Rights. Each party agrees to cooperate with\nand assist the other party at the other party's expense, in the protection of\ntrademarks, patents, or copyrights owned by or licensed to the other party and\nshall inform the other party immediately of any infringements or other improper\naction with respect to such trademarks, patents, or copyrights that shall come\nto the attention of the first party.\n\n                                   ARTICLE VI\n\n                              TERM AND TERMINATION\n\n      6.1 Term and Renewal. Unless terminated as provided in Section 6.2 below,\nthis Agreement shall continue in full force and effect for an initial three (3)\nyear term and shall renew thereafter for additional one (1) year terms upon the\nmutual agreement of the parties.\n\n      6.2 Termination. This Agreement may be terminated prior to expiration of\nthe initial or any renewal term, as provided in Section 6.1 above, by prior\nwritten notice to the other party, as follows:\n\n            6.2.1 By either party, in the event the other party is in material\nbreach of this Agreement and has failed, within thirty (30) days after receipt\nof written notice thereof from the non-\n\n\n                                       16\n   17\n\nbreaching party, (i) to cure such breach or (ii) to diligently pursue corrective\naction with respect to any material breach that cannot be reasonably cured\nwithin such 30-day period.\n\n            6.2.2 By either party, effective immediately, if the other party\nshould become the subject of any voluntary or involuntary bankruptcy,\nreceivership, or other insolvency proceedings or make an assignment or other\narrangement for the benefit of its creditors, and such action is not discharged\nor terminated within ninety (90) days.\n\n            6.2.3 By Inrange, effective immediately, if Purchaser should sell,\nassign, delegate or transfer any of its rights and obligations under this\nAgreement without having obtained Inrange's prior written consent thereto, or if\nthere should occur any material change in the control of Purchaser or if the\nPurchaser merges or otherwise combines with an entity that manufactures, offers\nfor sale, or sells any product that is directly competitive with any Inrange\nproduct.\n\n            6.2.4 By Inrange, effective immediately, in accordance with\nprovisions of Section 3.8 hereof.\n\n            6.2.5 By Purchaser, in the event that Inrange should fail to supply\nDesignated Inrange Products that conform to Inrange's product specifications and\nshould fail to remedy or work-around such quality deficiency within thirty (30)\ndays after receiving written demand therefor, unless such quality deficiency\ncannot reasonably be remedied or worked-around within thirty (30) days, in which\ncase the cure period shall be extended as long as Inrange diligently pursues\nsuch remedy or work-around.\n\n      6.3 Rights of Parties on Termination or Expiration. The following\nprovisions shall apply on the termination or expiration of this Agreement.\n\n            6.3.1 Inrange will complete all orders for Designated Inrange\nProducts which (i) have been accepted by Inrange prior to the effective date of\ntermination or expiration, but for which delivery has not yet been made, or (ii)\nare submitted by Purchaser (and accepted by Inrange) within six (6) months after\nthe effective date of termination or expiration based on a contractual\nobligation between Purchaser and its customer which exists as of the effective\ndate of termination or expiration. Inrange shall have a right to review and\nverify any contractual obligation between Purchaser and its customer which is\nthe basis for an order under this Section. Termination or expiration shall not\nrelieve the parties of their obligations under Sections 1.4, 1.5, 1.6, 1.7, 2.3,\n2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.12, 2.13, 2.14, 2.15, 2.16, 2.17, 2.18,\n3.5, 3.6, 3.8, 3.11, 3.13, 6.3, 6.4, 6.5, 6.6 and Articles V and VII hereof.\n\n            6.3.2 Except as provided in Section 6.3.1, Purchaser shall cease all\nsales activities on behalf of Inrange.\n\n            6.3.3 Purchaser will have a continuing right to use Inrange's\nConfidential Information to fulfill Purchaser's support obligations with respect\nto Designated Inrange Products purchased under this Agreement.\n\n\n                                       17\n   18\n\n            6.3.4 All indebtedness of Purchaser to Inrange shall become\nimmediately due and payable without further notice or demand, which is expressly\nwaived, and Inrange shall be entitled to reimbursement for any reasonable\nattorneys' fees that it may incur in collecting or enforcing payment of such\nobligations.\n\n            6.3.5 Except as required for continued performance under Section\n6.3.1, Purchaser shall remove from its property and immediately discontinue all\nuse, directly or indirectly, of trademarks, designs, and markings owned or\ncontrolled, now or hereafter, by Inrange, or of any word, title expression,\ntrademark, design, or marking that, in the opinion of Inrange, is confusingly\nsimilar thereto. Purchaser shall further certify in writing to Inrange that\nPurchaser has completely terminated its use of any and all such trademarks,\ndesigns, or markings, or any other word, title or expression similar thereto\nthat appeared in or on any devices or other materials used in conjunction with\nPurchaser's business.\n\n      6.4 Remedy. Under no circumstance shall either party be liable to the\nother by reason of termination or non-renewal of this Agreement for\ncompensation, reimbursement or damages for (a) loss of prospective compensation;\n(b) goodwill or loss thereof; or (c) expenditures, investments, leases or any\ntype of commitment made in connection with the business of such party or in\nreliance on the existence of this Agreement.\n\n      6.5 Limited Right to Manufacture. Purchaser shall have the non-exclusive,\nnontransferable, worldwide right, during the period of time required for\nPurchaser to fulfill its contractual obligations existing on the date of the\nTrigger Event (as defined below), to manufacture or have manufactured the\nDesignated Inrange Products solely for the purpose of Purchaser disposing of\nsuch Designated Inrange Products to OEMs wider private label upon the occurrence\nof any of the following events (each, a \"Trigger Event\"), provided that\nPurchaser is not then in breach of this Agreement, provided that the Trigger\nEvent does not arise from or relate to any defects arising from or relating to\nthe integration of Purchaser's ASICs in or with the Designated Inrange Products\nresulting from Purchaser's or the ASIC's supplier's actions, and provided that\nPurchaser manufactures the Designated Inrange Products in accordance with\nInrange's specifications:\n\n            (a) (i) the entry of an order for relief in a proceeding in\nbankruptcy (other than Chapter 11 of Title 11 of the U.S. Code, as the same may\nbe amended) in which Inrange is the named debtor; (ii) Inrange's making of an\nassignment for the benefit of Inrange's creditors; (iii) the appointment of a\nreceiver for Inrange; (iv) the filing of (1) any bankruptcy proceeding against\nInrange, other than Chapter 11 of Title 11 of the U.S. Code, (2) any proceeding\nfor an assignment for the benefit of Inrange's creditors or (3) any proceeding\nfor appointment of a receiver or custodian of the assets and property of\nInrange, which proceeding shall be consented to or acquiesced to be by Inrange\nor has not been discharged or terminated within ninety (90) days; (v) the\nrejection by Inrange or any trustee of Inrange of the Reseller Agreement\npursuant to 11 U.S.C. #365; or (vi) following the filing of a proceeding under\nChapter 11 of Title 11 of the U.S. Code, a failure by Inrange or its trustee to\nperform its obligations under the Reseller Agreement;\n\n            (b) Inrange ceases to operate as a business for a period of thirty\n(30) days;\n\n            (c) Inrange has materially breached this Agreement, and has failed\nto cure such breach within thirty (30) days after its receipt of written notice\nthereof from Purchaser or, if such\n\n\n                                       18\n   19\n\nbreach is not susceptible of cure within such period, has failed to commence\nsuch cure within such period;\n\n            (d) Failure by Inrange to deliver at least 80% of the delivery\nquantities of conforming Designated Inrange Products for which Inrange has\nacknowledged acceptance of orders and provided a delivery date during any sixty\n(60) day period, which has not been cured within sixty (60) days after written\nnotice thereof from Purchaser to Inrange;\n\n            (e) The effective date of the discontinuance of the manufacture of a\nDesignated Inrange Product pursuant to Section 2.13 (provided that the limited\nright to manufacture shall apply only to the discontinued Designated Inrange\nProduct); or\n\n            (f) Failure by Inrange to repair or replace defective Designated\nInrange Products within the warranty period specified in Schedule 2.8, which has\nnot been cured within thirty (30) days after written notice thereof from\nPurchaser to Inrange.\n\nIn the event that Purchaser gains the limited right to manufacture as set forth\nin this Section, Inrange shall not have any obligations with respect to the\nDesignated Inrange Products manufactured by Purchaser (including but not limited\nto any obligations to provide assistance, warranties, warranty service, or\nupdates); provided, however, notwithstanding the foregoing, Inrange's\nindemnification obligation under Section 2.18 shall continue. The right granted\nunder this Section will be terminated if Inrange demonstrates to Purchaser's\nreasonable satisfaction that it has cured the reasons for the Trigger Event and\nis able to fully perform the terms of this Agreement and has made Purchaser\nwhole for all expenses Purchaser has incurred due to the event(s) and the\nimplementation of the right granted under this Section. The right granted under\nthis Section covers Designated Inrange Products in existence at the time it\nbecomes effective and does not permit Purchaser to use Inrange's Confidential\nInformation to develop new products.\n\n      6.6 Escrow. Within sixty (60) days alter execution of this Agreement,\nInrange and Purchaser and Purchaser's designated independent escrow agent will\nexecute a three party escrow agreement, consistent with the terms of Section\n6.5, providing for the release of deposit materials in escrow to Purchaser upon\nthe occurrence of a Trigger Event. Within sixty (60) days after Inrange's first\nsale of a Designated Inrange Product to Purchaser pursuant to this Agreement,\nInrange will deliver to the escrow agent all Inrange Confidential Information\nrequired for the manufacture of the Designated Inrange Product. Inrange shall\nupdate such escrow account from time to time during the term of this Agreement,\nbut no less than once in every six (6) month period, in order to keep such\naccount current. Purchaser shall pay all costs, fees and charges of the escrow\nagent. Purchaser will use Inrange Confidential Information released by the\nescrow agent only in connection with its right under Section 6.5 and will return\nall such Inrange Confidential Information to Inrange upon the expiration or\ntermination of such right. Notwithstanding the foregoing, if Purchaser transfers\nany of the Inrange Confidential Information to a third party in order to have\nthe Designated Inrange Product manufactured as contemplated in Section 6.5, then\n(a) only such Inrange Confidential Information as is necessary to manufacture\nthe Designated Inrange Product may be transferred and (b) such third party shall\nexecute a written nondisclosure agreement that is at least as protective of\nInrange's rights in such transferred Inrange Confidential Information as is\nprovided\n\n\n                                       19\n   20\n\nunder this Agreement. Upon any release of the deposit materials in escrow to\nPurchaser pursuant to such escrow agreement, Inrange shall have no further\nobligation to maintain or update the escrow account. Further, upon the\nexpiration or termination of Purchaser's right to purchase Designated Inrange\nProducts pursuant to this Agreement, the escrow agreement shall be terminated\nand all deposit materials in escrow shall be returned to Inrange.\n\n                                  ARTICLE VII\n\n                               GENERAL PROVISIONS\n\n      7.1 Entire Agreement. This Agreement, including the Schedules hereto,\nrepresents the entire agreement between the parties as to the purchase and sale\nof Designated Inrange Products by Purchaser and supersedes all prior\ndiscussions, agreements and understandings of every kind and nature between them\npertaining to the subject matter hereof. Notwithstanding the foregoing, this\nAgreement does not supercede or modify in any manner the Technology License\nAgreement. No modification of this Agreement will be effective unless in writing\nand signed by both parties.\n\n      7.2 Notices. All notices under this Agreement shall be in English and\nshall be in writing and given by facsimile transmission (confirmed by overnight\ncourier with certified receipt) addressed to the parties at the addresses set\nforth below:\n\n            If to Inrange:    Inrange Technology Corp.\n                              Attention: Nick Hannon\n                              13000 Midlantic Drive\n                              Mr. Laurel, NJ 08054\n                              Fax: (856) 231-6960\n\n            with copy to:     Ms. Jean Santoro\n                              13000 Midlantic Drive\n                              Mt. Laurel, NJ 08054\n                              Fax:(856) 439-3005\n\n            If to Purchaser:  Ancor Communications, Inc.\n                              6321 Bury Drive, Suite 13\n                              Eden Prairie, MN 55346\n                              Attention: Kim Anderson\n                              Fax: (612) 932-4037\n\nor, in each case, to such other person or address of which either party may\nadvise the other in writing. Notices will be deemed given when sent.\n\n      7.3 Force Majeure. Neither party shall be in default hereunder by reason\nof any failure to delay in the performance of any obligation under this\nAgreement which such failure or delay\n\n\n                                       20\n   21\n\narises out of any cause beyond the reasonable control and without the fault or\nnegligence of such party. Such causes shall include, without limitation, storms,\nfloods, other acts of nature, fires, explosions, riots, wars or civil\ndisturbances, strikes or other labor unrest embargoes and other governmental\nactions or regulations which would prohibit either party from ordering or\nfurnish Products or from performing any other aspect of the obligations\nhereunder, delays in transportation, and inability to obtain necessary labor,\nsupplies or manufacturing facilities.\n\n      7.4 Severability. The illegality or unenforceability of any provision of\nthis Agreement shall not affect the validity and enforceability of any legal or\nenforceable provisions hereof.\n\n      7.5 Survival of Terms. Termination or expiration of this Agreement for any\nreason shall not release either party from any liabilities or obligations set\nforth in this Agreement which (a) the parties have expressly agreed shall\nsurvive any such termination or expiration, or (b) remain to be performed or by\ntheir nature would be intended to be applicable following any such termination\nor expiration.\n\n      7.6 Non-assignment. This Agreement shall be binding upon and inure to the\nbenefit of the successors and permitted assigns of the business interests of the\nparties hereto. Neither party shall have the right to assign or otherwise\ntransfer its rights and obligations under this Agreement except with the prior\nwritten consent of the other party, whose consent shall not be unreasonably\nwithheld, except that no consent shall be required for Inrange to assign or\notherwise transfer its rights and\/or obligations under this Agreement to one or\nmore of Inrange's affiliates (i.e., an entity that controls, is controlled by,\nor is under common control with Inrange). Any prohibited assignment shall be\nnull and void.\n\n      7.7 Announcements. The terms and conditions of this Agreement are\nconfidential and, except to the extent that such disclosure is required by law,\nneither party shall disclose the terms and conditions of this Agreement to any\nthird party without the prior written consent of the other party. Any press\nrelease or announcement containing any reference to the other party must be\napproved, in writing, by the referenced party prior to publication or release.\n\n      7.8 Waivers. Any failure of either party to comply with any obligation,\ncovenant or agreement herein may be waived in writing by the other party, but\nsuch waiver or failure to insist upon strict compliance of such obligation,\ncovenant or agreement shall not operate as a waiver of, or estoppel with respect\nto, any subsequent or other failure.\n\n      7.9 Counterparts. This Agreement may be executed simultaneously in\ncounterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same agreement.\n\n      7.10 Applicable Law. This Agreement shall be interpreted in accordance\nwith and governed by the laws of the State of New Jersey.\n\n      IN WITNESS WHEREOF, the parties have caused this instrument to be executed\nby their duly authorized officers, as of the day and year first above written.\n\n\n                                       21\n   22\n\n                                        INRANGE TECHNOLOGIES CORPORATION\n\n                                        By: \/s\/ Greg R. Grodhaus\n                                            ------------------------------------\n\n                                        Name: Greg R. Grodhaus\n                                              ----------------------------------\n\n                                        Title: President\n                                               ---------------------------------\n\n\n                                        ANCOR COMMUNICATIONS, INC.\n\n                                        By: \/s\/ Cal Nelson\n                                            ------------------------------------\n\n                                        Name: CAL NELSON\n                                              ----------------------------------\n\n                                        Title: PRESIDENT\n                                               ---------------------------------\n\n\n                                       22\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6701,7864],"corporate_contracts_industries":[9516,9509],"corporate_contracts_types":[9613,9619],"class_list":["post-42743","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-ancor-communications-inc","corporate_contracts_companies-inrange-technologies-corp","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_industries-technology__networking","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\/42743","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=42743"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42743"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42743"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42743"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}