EXHIBIT 10.33
[CISCO SYSTEMS LOGO APPEARS HERE]
PURCHASE AND LICENSE AGREEMENT
This Purchase and License Agreement (the "Agreement") by and between Cisco
Systems Inc., a California corporation having a place of business at 000 Xxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 ("Cisco"), and Convergent
Communications Services, Inc., a Colorado corporation, with offices at 000
Xxxxxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Customer") is entered
into as of the date last written below (the "Effective Date").
This Agreement consists of this signature page and the following attachments
that are incorporated in this Agreement by this reference:
1. Purchase and License Agreement Terms and Conditions
2. ATTACHMENT I: Telecommunications Service Provider Provisions
a) EXHIBIT A: Territory
b) EXHIBIT B: Discount Schedule
c) EXHIBIT C: Support
d) EXHIBIT D: List of Affiliates
e) EXHIBIT E: Network Deployment
3. ATTACHMENT II: System Integrator Provisions
a) EXHIBIT A: Customer Profile
b) EXHIBIT B: Discount Schedule
c) EXHIBIT C: Customer's Reporting Requirements
d) EXHIBIT D: Support
4. ATTACHMENT III: Software License Agreement
This Agreement is the complete agreement between the parties hereto
concerning the subject matter of this Agreement and replaces any prior oral
or written communications between the parties. There are no conditions,
understandings, agreements, representations, or warranties, expressed or
implied, which are not specified herein. This Agreement may only be modified
by a written document executed by the parties hereto. Any orders accepted or
Products delivered by Cisco after the date of this Agreement is signed by
Customer but before the Effective Date, shall upon the Effective Date be
deemed covered by the provisions of this Agreement, except for any deviations
in price.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed. Each party warrants and represents that its respective signatories
whose signatures appear below have been and are on the date of signature duly
authorized to execute this Agreement.
Cisco Systems, Inc. ("Cisco")
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("Customer")
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Authorized Signature Authorized Signature
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Name Name
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Date Date
PURCHASE AND LICENSE AGREEMENT
TERMS AND CONDITIONS
1. Definitions.
Access Products are those Products listed as part of the Access family of
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Products in Cisco's then-current product catalogue.
Added Value is the non-Cisco component portion of Customer's total solution
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which Customer provides to End User pursuant to the provisions of Attachment
III. Providing financing options is not considered Added Value.
Affiliates are the entities listed on Exhibit D to Attachment I of this
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Agreement of which at least 50.1% of the voting power is owned by Customer.
Cisco Certified Internetworking Engineer ("CCIE") is the status granted to
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Customer employees who successfully complete the then-current CCIE Program
offered by Cisco.
CCO is Cisco's suite of on-line services and information.
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Documentation is the Cisco documentation made available in hard copy or in
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electronic form with the Products or otherwise under this Agreement.
End User is the entity to which Customer sells and licenses Products for such
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entity's own internal use in conjunction with a) Customer's Network Services
or to which Customer provides telecommunications services through use of the
Products pursuant to the provisions of Attachment I,
or b) with Added Value, pursuant to the provisions of Attachment II .
Hardware is the tangible product made available to Customer.
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Network Services are the services offered by Customer which may include the
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following: access to the Internet and voice and data transmission, and value-
added telecommunications services related to such transmission, including
managed network services whereby Customer manages network elements belonging
to End Users in conjunction with telecommunications services provided to End
Users by Customer.
Price List is Cisco's published global price list.
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Product is Hardware and/or Software.
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Purchase Order is a written or electronic order from Customer to Cisco for
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Hardware, Software or services to be purchased, licensed or provided under
this Agreement.
Sales Expert is the status granted to Customer employees who successfully
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complete the then-current Sales Expert training curriculum offered by Cisco.
Software is the machine readable (object code) version of the computer
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programs listed from time to time on the Price List and made available by
Cisco for license by Customer, and any copies, updates to, or upgrades
thereof.
Switching Products are those Products listed as part of the switching family
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of Products in Cisco's then-current product catalogue.
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Territory is comprised of: (i) for Network Services activities of Customer,
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those regions or countries listed in Attachment I hereto; (ii) for Added Value
activities of Customer, those regions or countries listed in Attachment II
hereto; and (iii) for internal business use of Customer, those regions or
countries listed in an Attachment which has not expired or terminated.
2. Scope.
2.1 This Agreement sets forth the terms and conditions for Customer's purchase
of Hardware and license of Software solely for:
A. Customer's Internal Business Use.
Customer may purchase the Products listed in Cisco's then-current Price
List for its internal business use in the Territory.
B. Network Services Provisioning and Commercial Resale.
Cisco grants Customer a non-exclusive, nontransferable right to
purchase Products pursuant to the provisions of Attachment I in association
with its Network Services activities.
C. Commercial Integration And Resale.
Cisco grants Customer a non-exclusive, nontransferable right to purchase
Products pursuant to the provisions of Attachment II in association with its
Added Value activities
3. Multinational Deployment Policy.
Unless mutually agreed in writing by the parties, Customer shall procure
equipment for deployment outside of the Territory only in accordance with
Cisco's then-current multinational deployment policies and procedures.
4. Prices.
4.1 Prices for Products shall be those specified in Cisco's then-current Price
List less the applicable discounts specified in Exhibit B to Attachment I and
Exhibit B to Attachment II of this Agreement. All prices are F.O.B. (for
international shipments, FCA per INCOTERMS 1990) Cisco's San Xxxx site. Cisco
may change prices for the Products at any time by issuance of a revised Price
List (including via electronic posting) or other announcement of price change.
Purchase Orders received before the date of the announcement of price changes,
and those received within thirty (30) days thereafter which specify a delivery
date within ninety (90) days of the date of announcement, will be invoiced to
Customer without regard to the price change, provided however, price decreases
will be effective for all Purchase Orders accepted by Cisco after the date of
issuance or announcement of revised prices.
4.2 Customer is free to determine its resale prices unilaterally. Customer
understands that neither Cisco nor any employee or representative of Cisco may
give any special treatment (favorable or unfavorable) to Customer as a result
of Customer's selection of resale prices. No employee or representative of
Cisco or anyone else has any authority to determine what Customer's resale
prices for the Products must be or to inhibit in any way Customer's pricing
discretion with respect to the Products.
4.3 All stated prices are exclusive of any taxes, fees and duties or other
amounts, however designated, and including without limitation value added and
withholding taxes which are levied or based upon such charges, or upon this
Agreement. Any taxes related to Products purchased or licensed pursuant to
this Agreement shall be
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paid by Customer or Customer shall present an exemption certificate acceptable
to the taxing authorities. Applicable taxes shall be billed as a separate item
on the invoice, to the extent possible.
5. Orders.
5.1 Customer shall purchase Products by issuing a written or electronic
Purchase Order signed (or sent in the case of an electronic order) by an
authorized representative, indicating specific Products, quantity, price,
total purchase price, shipping instructions, requested delivery dates, xxxx-to
and ship-to addresses, tax exempt certifications, if applicable, to which
Attachment (I or II) the Purchase Order is subject, and any other special
instructions. Any contingencies contained on such Purchase Order are not
binding upon Cisco. The terms and conditions of this Agreement prevail
regardless of any conflicting terms on the Purchase Order or other
correspondence. All Purchase Orders are subject to approval and acceptance by
the Cisco customer service order administration office of the Cisco entity
which shall supply the Products, and no other office is authorized to accept
orders on behalf of Cisco. Cisco shall use commercially reasonable efforts to
provide information regarding acceptance or rejection of such orders within
ten (10) days from receipt thereof.
5.2 Customer has the right to defer Product shipment for no more than thirty
(30) days from the scheduled shipping date, provided written notice is
received by Cisco at least ten (10) days before the originally scheduled
shipping date. Cancelled orders, rescheduled deliveries or Product
configuration changes made by Customer within ten (10) days of the original
shipping date will be subject to (a) acceptance by Cisco, and (b) a charge of
fifteen percent (15%) of the total invoice amount. Cisco reserves the right to
reschedule delivery in cases of configuration changes made within ten (10)
days of scheduled shipment.
6. Shipping and Delivery.
6.1 Shipping dates will be established by Cisco upon acceptance of Purchase
Orders from Customer. Shipping dates will be assigned as close as practicable
to the Customer's requested date based on Cisco's then-current lead times for
the Products. Cisco will use commercially reasonable efforts to notify
Customer, which may be through electronic posting on CCO, of the scheduled
shipping date within ten (10) working days after receipt of order. Unless
given written instruction by Customer, Cisco shall select the carrier.
6.2 Shipping terms are FOB Origin, (FCA per INCOTERMS 1990 for international
shipments) at Cisco's site, San Jose, California. Title and risk of loss shall
pass from Cisco to Customer upon delivery to the common carrier or Customer's
representative at the FOB point. Delivery shall be deemed made upon transfer
of possession to the carrier. Customer shall be responsible for all freight,
handling and insurance charges. In no event shall Cisco have any liability in
connection with shipment, nor shall the carrier be deemed to be an agent of
Cisco. Cisco shall not be liable for damage or penalty for delay in delivery
or for failure to give notice of any delay.
6.3 If Cisco fails to ship the Products within thirty (30) days after the
scheduled shipment date, Customer may cancel its Purchase Order with respect
to such delayed Products. Such cancellation shall be Customer's sole remedy in
case of delayed delivery. Upon request of Customer, Cisco shall include
Customer in any prioritization program for deliveries as determined in Cisco's
discretion.
6.4 During the term of this Agreement, Cisco may make the Products which are
to be supplied outside of the United States available for order in and
delivery from an alternate central location and/or a Cisco affiliate, if it
chooses. In the event that Cisco does so, Customer will order the Products
according to the procedures set forth at the time such delivery becomes
available. At such time, orders in conformance with Cisco's policies will be
shipped according to the availability and expedited lead-times described in
the procedures. Cisco shall have the right to change delivery terms and
include additional charges, if any, at the time such alternate order and
delivery process is implemented by Cisco.
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7. Payment.
Upon and subject to credit approval by Cisco, payment terms shall be net
thirty (30) days from shipping date. All payments shall be made in U.S.
currency. If at any time Customer is delinquent in the payment of any invoice
or is otherwise in breach of this Agreement, Cisco may, in its discretion, and
without prejudice to its other rights, withhold shipment (including partial
shipments) of any order or may, at its option, require Customer to prepay for
further shipments. Any sum not paid by Customer when due shall bear interest
until paid at a rate of 1.5% per month (18% per annum) or the maximum rate
permitted by law, whichever is less. Customer grants Cisco a security
interest in Products purchased under this Agreement to secure payment for
those Products purchased. If requested by Cisco, Customer agrees to execute
financing statements to perfect this security interest.
8. Product Changes and Continuing Support.
8.1 Modifications which do not affect the form, fit or function of a Product
or which Cisco deems necessary to comply with specifications, changed safety
standards or governmental regulations, to make the Product non-infringing with
respect to any patent, copyright or other proprietary interest, or to
otherwise improve the Product may be made at any time by Cisco without prior
notice to or consent of Customer and such altered Product shall be deemed
fully conforming. Cisco shall employ commercially reasonable efforts to
announce, including by electronic posting, Product discontinuance or changes
other than those set forth in the previous sentence at least ninety (90) days
prior to the effective date of the changes (the "Announcement Period").
Customer may make a last-time purchase of such Products within the
Announcement Period.
8.2 Customer may propose modifications to Products to Cisco at any time. Cisco
may in its sole discretion accept or reject any proposed modification. Unless
expressly agreed in writing to the contrary, Cisco shall own all intellectual
property rights, including patent, copyright and trade secret, to any proposed
modification or the implementation thereof which is based on, adapts, relies
upon, is made with reference to or uses any Proprietary Information of Cisco.
8.3 In the event that Cisco discontinues the availability of a Product and no
Product with equivalent or better functionality is available, Cisco shall make
available either (a) spare parts and repair services for the Hardware portion
of the discontinued Product for five (5) years from the date of announcement
of the discontinuance; or (b) provide an opportunity for Customer to purchase
a one-time supply of spare parts to support its reasonable, estimated
requirements. Technical support for each revision of Cisco's standard Software
for a Product shall be available for three (3) years from the date of first
commercial shipment of such revision.
9. Proprietary Rights and Software Licensing.
9.1 Subject to the terms and conditions of this Agreement, Cisco grants to
Customer a non-exclusive, non-transferable license, (a) to use the Software
for Customer's internal business use, and to create and provide Network
Services to End Users in the Territory under the terms of Part (i) of
Attachment III, with "End User" in Attachment III referring to Customer with
respect to such use, and, (b) during the term of this Agreement, to market and
distribute the Software, solely as permitted in Section 2 of this Agreement,
in the Territory. The license granted herein shall be for use of the Software
in object code format only and solely as provided in Part (i) of Attachment
III. Customer may not sublicense to any person or entity (including its
affiliates) its rights to distribute the Software.
9.2 Customer shall provide a copy of the Software License Agreement
(inclusive of Parts (i) and (ii)) (a copy of which is attached hereto as
Attachment III) to each End User of the Software prior to installation of the
Software. Customer agrees to notify Cisco promptly of any breach of the
Software License Agreement and
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further agrees that it will diligently pursue or, at Cisco's request, assist
Cisco to diligently pursue, an action against any third parties in breach of
the license.
10. Limited Warranty.
10.1 Hardware. Cisco warrants that for a period of ninety (90) days from
the date of shipment from Cisco that the Hardware will be free from defects in
material and workmanship under normal use. This limited warranty extends only
to Customer as original purchaser. Customer's sole and exclusive remedy and
the entire liability of Cisco and its suppliers under this limited warranty
will be, at Cisco's or its service center's option, shipment of an advance
replacement within five (5) working days at Cisco's expense, or a refund of
the purchase price if the Hardware is returned to the party supplying it to
Customer, if different than Cisco, freight and insurance prepaid. Cisco
replacement parts used in Hardware repair may be new or equivalent to new. All
articles must be returned in accordance with Cisco's then-current Return
Material Authorization (RMA) procedure.
10.2 Software. Cisco warrants that for a period of ninety (90) days from
the date of shipment from Cisco: (a) the media on which the Software is
furnished will be free of defects in materials and workmanship under normal
use; and (b) the Software substantially conforms to its published
specifications. Except for the foregoing, the Software is provided AS IS. This
limited warranty extends only to Customer as the original licensee. Customer's
sole and exclusive remedy and the entire liability of Cisco and its suppliers
under this limited warranty will be, at Cisco or its service center's option,
repair, replacement, or refund of the Software if reported (or, upon request,
returned) to the party supplying the Software to Customer, if different than
Cisco. In no event does Cisco warrant that the Software is error free or that
Customer will be able to operate the Software without problems or
interruptions.
10.3 Cisco represents that Products which it has designated as "Year 2000
Compliant" (or Status Description "Green") as set forth in the
"Compliance Table," (including accompanying Notes) located in Cisco's
"Year 2000 Compliance" web pages beginning at xxxx://xxx.xxxxx.xxx (the
"Year 2000 Pages") are "Year 2000 Compliant," meaning that, as delivered
to Customer:
A. The Products accurately process data and time calculations before and
during the years 1999 and 2000;
B. All manipulation of time-related data yields the desired results for
valid date values within the application domain;
X. Xxxx elements in those Products use four digit storage and indicate
century to eliminate the chance for errors;
D. If a date element exists without a century indication, the correct
century continues to be unambiguous and produces accurate results; and
E. Software accurately processes date and time data when used in
conjunction with other Year 2000 compliant software products.
Should a Product that is so identified as "Year 2000 Compliant" not be Year
2000 Compliant or should Cisco otherwise breach the foregoing representation,
Cisco will, as Customer's sole and exclusive remedy, repair or replace the
Product so that it becomes Year 2000 Compliant or, if Cisco is unable to
repair or replace the Product to make it Year 2000 Compliant, Cisco will
refund the purchase price of the Product paid to Cisco by Customer as
depreciated or amortized by an equal annual amount over the lifetime of the
Product, as established by Cisco, provided that Customer returns the Product
to Cisco as originally delivered by Cisco (except for normal wear and tear)
and pursuant to Cisco's then-current RMA policy. The foregoing representation
and remedy shall only apply to Products returned prior to January 31, 2001, or
to Products
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returned before the Products are no longer supported pursuant to Cisco's
standard support policies, whichever event first occurs. Customer acknowledges
that: (i) the Internet URL address and the web pages referred to above may be
updated by Cisco from time to time and (ii) each Product ordered will be
subject to Cisco's then-current "Year 2000 Pages."
10.4 Resale. Notwithstanding any other provision hereof, Cisco's sole and
exclusive warranty and obligation with respect to the Products resold
hereunder are set forth in Cisco's Limited Warranty Statement delivered with
the Product. CUSTOMER SHALL NOT MAKE ANY WARRANTY COMMITMENT, WHETHER
WRITTEN OR ORAL, ON CISCO'S BEHALF. Customer shall indemnify Cisco for any
warranties made in addition to Cisco's standard warranty and for any
misrepresentation of Cisco's reputation or Cisco's Products.
10.5 Restrictions. The above warranties do not apply if the Product (a) has
been altered, except by Cisco, (b) has not been installed, operated, repaired,
or maintained in accordance with instructions supplied by Cisco, (c) has been
subjected to abnormal physical or electrical stress, misuse, negligence, or
accident, or (d) is used in ultrahazardous activities.
10.6 DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS SECTION 10, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT
OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY
EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. This disclaimer and
exclusion shall apply even if the express warranty set forth above fails of
its essential purpose.
11. Trademark Usage.
11.1 Customer is permitted to use the name, logo, trademarks, and other
marks of Cisco (collectively, the "Marks") for all proper purposes in the
sale of Cisco Products to End Users and the performance of Customer's duties
hereunder only so long as this Agreement is in effect. Customer's use of such
Marks shall be in accordance with Cisco's policies including, but not limited
to trademark usage and advertising policies, and be subject to Cisco's
approval. Customer agrees not to attach to any Products any trademarks, trade
names, logos, or labels other than an aesthetically proper label identifying
the Customer, its location and its relationship to Cisco. Customer further
agrees not to affix any Cisco Marks to products other than genuine Products.
11.2 Customer shall have no claim or right in the Marks, including but not
limited to trademarks, service marks, or trade names owned, used or claimed
now or in the future by Cisco. Customer shall not make any claim to the Cisco
Marks or lodge any filings with respect to such Marks or marks confusingly
similar to the Marks, whether on behalf of Cisco or in its own name or
interest, without the prior written consent of Cisco.
12. Confidential Information.
12.1 "Confidential Information" to be disclosed by Customer under this
Agreement is information regarding Customer's network operations and technical
plans and marketing and financial data, and "Confidential Information" to be
disclosed by Cisco under this Agreement is information posted on CCO as well
as information regarding Cisco's hardware, software and service products, and
technical, financial and marketing data.
The Receiving Party may use the Confidential Information solely for the
purpose of furtherance of the business relationship between the parties and
shall not disclose the Confidential Information to any third party other than
persons in the direct employ of the Receiving Party who have a need to have
access to and knowledge of the Confidential Information solely for the purpose
authorized above. Each party shall take appropriate measures
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by instruction and agreement prior to disclosure to such employees to assure
against unauthorized use or disclosure.
12.2 The Receiving Party shall have no obligation with respect to information
which (i) was rightfully in possession of or known to the Receiving Party
without any obligation of confidentiality prior to receiving it from the
Disclosing Party; (ii) is, or subsequently becomes, legally and publicly
available without breach of this Agreement; (iii) is rightfully obtained by
the Receiving Party from a source other than the Disclosing Party without any
obligation of confidentiality; (iv) is developed by or for the Receiving Party
without use of the Confidential Information and such independent development
can be shown by documentary evidence; (v) becomes available to the Receiving
Party by wholly lawful inspection or analysis of products offered for sale;
(vi) is transmitted by a party after receiving written notification from the
other party that it does not desire to receive any further Confidential
Information; (vii) is disclosed by the Receiving Party pursuant to a valid
order issued by a court or government agency, provided that the Receiving
Party provides (a) prior written notice to the Disclosing Party of such
obligation and (b) the opportunity to oppose such disclosure. Upon written
demand by the Disclosing Party, the Receiving Party shall: (i) cease using the
Confidential Information, (ii) return the Confidential Information and all
copies, notes or extracts thereof to the Disclosing Party within seven (7)
days of receipt of demand, and (iii) upon request of the Disclosing Party,
certify in writing that the Receiving Party has complied with the obligations
set forth in this paragraph.
12.3 The terms of confidentiality under this Agreement shall not be
construed to limit either party's right to independently develop or acquire
products without use of the other party's Confidential Information. The
Disclosing Party acknowledges that the Receiving Party may currently or in the
future be developing information internally, or receiving information from
other parties, that is similar to the Confidential Information. Accordingly,
nothing in this Agreement will be construed as a representation or agreement
that the Receiving Party will not develop or have developed for it products,
concepts, systems or techniques that are similar to or compete with the
products, concepts, systems or techniques contemplated by or embodied in the
Confidential Information provided that the Receiving Party does not violate
any of its obligations under this Agreement in connection with such
development. Further, either party shall be free to use for any purpose the
residuals resulting from access to or work with such Confidential Information,
provided that such party shall maintain the confidentiality of the
Confidential Information as provided herein. The term "residuals" means
information in non-tangible form, which may be retained by persons who have
had access to the Confidential Information, including ideas, concepts, know-
how or techniques contained therein. Neither party shall have any obligation
to limit or restrict the assignment of such persons or to pay royalties for
any work resulting from the use of residuals.
12.4 Each party shall retain all right, title and interest to such party's
Confidential Information. No license under any trademark, patent or copyright,
or application for same which are now or thereafter may be obtained by such
party is either granted or implied by the conveying of Confidential
Information. The Receiving Party shall not reverse-engineer, decompile, or
disassemble any software disclosed to it and shall not remove, overprint or
deface any notice of copyright, trademark, logo, legend, or other notices of
ownership from any originals or copies of Confidential Information it obtains
from the Disclosing Party. CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH
ALL FAULTS. IN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY
OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION. None of the Confidential
Information disclosed by the parties constitutes any representation, warranty,
assurance, guarantee or inducement by either party to the other with respect
to the infringement of trademarks, patents, copyrights; any right of privacy;
or any rights of third persons.
12.5 Neither party shall disclose, advertise, or publish the terms and
conditions of this Agreement without the prior written consent of the other
party. Any press release or publication regarding this Agreement is subject
to prior review and written approval of the parties.
13. Patent and Copyright Infringement.
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13.1 Cisco will have the obligation and right to defend any claim, suit or
proceeding brought against Customer so far as it is based on a claim that any
Product supplied hereunder infringes a United States copyright or an existing
United States patent (issued as of the Effective Date). Also, Cisco will
indemnify Customer solely against final judgements entered in such a suit by a
court of competent jurisdiction or proceeding and against settlements arising
out of such a claim, suit, or proceeding. Cisco's obligation specified in
this paragraph will be conditioned on Customer's notifying Cisco promptly in
writing of the claim and giving Cisco full authority, information, and
assistance for the defense and settlement thereof. If such claim has
occurred, or in Cisco's opinion is likely to occur, Customer agrees to permit
Cisco, at its option and expense, either to (a) procure for Customer the right
to continue using the Product; (b) to replace or modify the same so that it
becomes non-infringing; or (c) if neither of the foregoing alternatives is
reasonably available, immediately terminate Cisco's obligations (and
Customer's rights) under this Agreement with regard to such Products, and, if
Customer returns such Product to Cisco refund to Customer the price originally
paid by Customer to Cisco for such Product as depreciated or amortized by an
equal annual amount over the lifetime of the Product as established by Cisco.
13.2 Notwithstanding the foregoing, Cisco has no liability for any claim
based upon (a) the combination, operation, or use of any Product supplied
hereunder with equipment, devices, or software not supplied by Cisco, (b)
alteration or modification of any Product supplied hereunder or (c) Cisco's
compliance with Customers designs, specifications or instructions. Cisco has
no liability for any claim based upon alteration or modification of any
Product supplied hereunder.
13.3 Notwithstanding any other provisions hereof, Cisco shall not be liable
for any claim based on Customer's use of the Products as shipped after Cisco
has informed the Customer of modifications or changes in the Products required
to avoid such claims and offered to implement those modifications or changes,
if such claim would have been avoided by implementation of Cisco's
suggestions.
13.4 THE FOREGOING STATES THE ENTIRE OBLIGATION OF CISCO AND ITS SUPPLIERS
WITH RESPECT TO INFRINGEMENT OF PROPRIETARY RIGHTS. THE FOREGOING IS GIVEN TO
CUSTOMER SOLELY FOR ITS BENEFIT AND IN LIEU OF, AND CISCO DISCLAIMS, ALL
WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS.
14. Term and Termination.
14.1 This Agreement shall commence on the Effective Date and continue
thereafter for a period of three (3) years, unless extended by written
agreement of both parties or sooner terminated as set forth below. The term
of each Attachment I and Attachment II shall be as stated in the respective
attachment and subject to any additional termination provisions stated in such
attachment; provided that upon any termination or expiration of this
Agreement, both Attachment I and Attachment II shall terminate.
14.2 Cisco may, upon twenty (20) days written notice, terminate this
Agreement in the event there is an acquisition or transfer of a controlling
interest in Customer.
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14.3 This Agreement (including Attachments I and II) may be terminated
immediately by either party through written notice under any of the following
conditions: Either party ceases to carry on business as a going concern,
either party becomes the object of the institution of voluntary or involuntary
proceedings in bankruptcy or liquidation, or a receiver is appointed with
respect to a substantial part of its assets.
14.4 This Agreement (and/or Attachment I and/or Attachment II) may be
terminated immediately by either party through written notice if the other
party breaches any of the material provisions of this Agreement and fails to
remedy such breach within thirty (30) days after written notification by the
other party of such breach. In the event that such breach is material to only
the provisions of one Attachment, the permitted termination hereunder shall be
with respect to the entire Agreement or the affected Attachment only.
14.5 Notwithstanding the foregoing, this Agreement may be terminated
immediately by Cisco in the event of Customer's breach of Section 9,
Proprietary Rights and Software Licensing, or by either party in the event of
the other party's breach of Section 12, Confidential Information.
14.6 Upon termination of this Agreement, (a) Cisco reserves the right to
cease all further deliveries due against existing orders unless Customer
agrees to pay for such deliveries by certified or cashier's check prior to
shipment, (b) all outstanding invoices immediately become due and payable by
certified or cashier's check, and (c) subject to Section 23.7, all rights and
licenses of Customer hereunder shall terminate except that Customer may
continue to distribute, in accordance with normal business practices and the
terms of this Agreement, Products shipped to it by Cisco prior to the date of
termination.
14.7 Additionally, upon termination of this Agreement Customer shall
immediately return to Cisco all Confidential Information and data (including
all copies thereof) then in Customer's possession or custody or control
including, without limitation:
A. All technical materials and business plans supplied by Cisco;
B. All manuals covering Products; and
C. Any customer or prospect lists provided by Cisco.
retaining only sufficient material to fulfill remaining orders and to service
the installed base of customers as mutually agreed upon by Cisco and Customer.
14.8 CUSTOMER AGREES IN THE EVENT OF TERMINATION OF THIS AGREEMENT (OR
ATTACHMENT I AND/OR ATTACHMENT II) FOR ANY REASON, IT SHALL HAVE NO RIGHTS TO
DAMAGES OR INDEMNIFICATION OF ANY NATURE RELATED TO SUCH TERMINATION (BUT NOT
LIMITING ANY CLAIM FOR DAMAGES IT MIGHT HAVE ON ACCOUNT OF CISCO'S BREACH OF
THIS AGREEMENT, EVEN IF THE BREACH GAVE RISE TO TERMINATION, SUCH LIABILITY
BEING GOVERNED BY AND SUBJECT TO THE LIMITATIONS SET FORTH ELSEWHERE IN THIS
AGREEMENT), SPECIFICALLY INCLUDING NO RIGHTS TO DAMAGES OR INDEMNIFICATION FOR
COMMERCIAL SEVERANCE PAY, WHETHER BY WAY OF LOSS OF FUTURE PROFITS,
EXPENDITURES FOR PROMOTION OF THE CISCO PRODUCTS, OR OTHER COMMITMENTS IN
CONNECTION WITH THE BUSINESS AND GOOD WILL OF CUSTOMER. CUSTOMER EXPRESSLY
WAIVES AND RENOUNCES ANY CLAIM TO COMPENSATION OR INDEMNITIES FOR ANY
TERMINATION OF A BUSINESS RELATIONSHIP.
15. Audit.
Customer shall keep full, true, and accurate records and accounts, in
accordance with generally-accepted accounting principles, of each Product
purchased and deployed or distributed, including information regarding
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Software usage and export. Customer shall make these records available for
audit by Cisco upon fifteen (15) days prior written notice, during regular
business hours at Customer`s principal place of business.
16. General Indemnity.
16.1 Each party shall defend, indemnify and hold harmless the other, its
corporate affiliates and their respective officers, directors, employees, and
agents and their respective successors and assigns from and against any and
all claims, losses, liabilities, damages, and expenses (including, without
limitation, reasonable attorneys' fees), including without limitation, those
based on contract or tort, arising out of or in connection with a claim, suit
or proceeding brought by a third party or any person furnished by Cisco or
Customer based on bodily injury (including death) or damage to tangible
personal property (not including lost data) arising from the negligent or
intentional acts or omissions of the indemnifying party or its subcontractors,
or the officers, directors, employees, agents, successors and assigns of any
of them. In the event that the indemnified party's negligent or intentional
acts or omissions contributed to cause the injury or damage for which a claim
of indemnity is being asserted against the indemnifying party hereunder, the
damages and expenses (including, without limitation, reasonable attorneys'
fees) shall be allocated or reallocated, as the case may be, between the
indemnified party and the indemnifying party in such proportion as
appropriately reflects the relative fault of the two parties, or their
subcontractors or the officers, directors, employees, agents, successors and
assigns of any of them, and the liability of the indemnifying party shall be
proportionately reduced.
16.2 The foregoing indemnification obligations are conditioned upon the
indemnified party promptly notifying the indemnifying party in writing of the
claim, suit, or proceeding for which the indemnifying party is obligated under
this Section, cooperating with, assisting and providing information to, the
indemnifying party as reasonably required, and granting the indemnifying party
the exclusive right to defend or settle such claim, suit or proceeding.
17. Export, Re-Export, and Transfer Controls.
17.1 Customer hereby acknowledges that the Products and technology or direct
products thereof (hereafter referred to as "Products and Technology"),
supplied by Cisco hereunder are subject to export controls under the laws and
regulations of the United States (U.S.). Customer shall comply with such laws
and regulations and agrees not to export, re-export or transfer Products and
Technology without first obtaining all required U.S. Government authorizations
or licenses. Cisco and Customer each agree to provide the other such
information and assistance as may reasonably be required by the other in
connection with securing such authorizations or license, and to take timely
action to obtain all required support documents.
A. End-Use/User: Customer hereby certifies that none of the Products and
Technology supplied by Cisco to Customer hereunder will be exported, re-
exported, or otherwise transferred by Customer:
A.1 to a U.S. embargoed or highly restricted destination, (15 United
States Code of Federal Regulations ("CFR") Part 746)
A.2 to use by or for any military end-user, or in any military end-use
located in or operating under the authority of any country identified in
Country Group D1 under 15 CFR, Supplement Xx. 0 xx Xxxx 000, (00 XXX
Part 740)
A.3 to, or made available by Customer for use by or for, any entity
that is engaged in the design, development, production, stockpile or use
of nuclear, biological or chemical weapons or missiles, (15 CFR Part
744)
A.4 to parties on any of the U.S. Government's lists of denied
persons, (15 CFR Part 764)
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without first obtaining all required U.S. Government authorizations or
licenses.
B. Customer's obligation under this clause shall survive the expiration or
termination of this Agreement.
C. Customer agrees to maintain a record of exports, re-exports, and
transfers of the Products and Technology for five years and to forward
within that time period any required records to Cisco or, at Cisco's
request, the U.S. Government. Customer agrees to permit audits by Cisco or
the U.S. Government as required under the regulations to ensure compliance
with this Agreement.
18. Force Majeure.
Except for the obligation to pay monies due and owing, neither party shall be
liable for any delay or failure in performance due to events outside the
defaulting party's reasonable control, including without limitation, acts of
God, earthquake, labor disputes, shortages of supplies, riots, war, fire,
epidemics, or delays of common carriers or other circumstances beyond its
reasonable control. The obligations and rights of the excused party shall be
extended on a day to day basis for the time period equal to the period of
excusable delay.
19. Compliance with Laws.
19.1 Cisco shall comply with all standards that Cisco has placarded on the
Products and shall comply with all U.S. federal and state laws and regulations
applicable to the manufacture and operation of the Products, not including
non-mandatory standards body recommendations. Cisco shall not be responsible
for noncompliance with laws arising out of combination, operation or use of
the Products with Products not supplied by Cisco where use of the Products
without such combination, operation or use would be in compliance with such
laws. In the event of any third party claim against Customer relating to the
foregoing, Cisco shall provide reasonable information and assistance in the
resolution of the claim.
19.2 Except as set out in Section 19.1, Customer shall obtain all licenses,
permits and approvals required by any government and shall comply with all
applicable laws, rules, policies and procedures including requirements
applicable to the use of Products under telecommunications and other laws and
regulations, of any government where the Products are to be sold or deployed
(collectively, "Applicable Laws"). Customer will indemnify and hold harmless
Cisco for any violation or alleged violation by Customer of any Applicable
Laws. Customer hereby represents and warrants that: a) it shall comply with
all Applicable Laws; and b) it shall not act in any fashion or take any action
or permit or authorize any action which will render Cisco liable for a
violation of the U.S. Foreign Corrupt Practices Act, which prohibits the
offering, giving or promising to offer or give, directly or indirectly, money
or anything of value to any official of a government, political party or
instrumentality thereof in order to assist it or Cisco in obtaining or
retaining business and (i) it will not violate or cause Cisco to violate such
act in connection with the sale or distribution of Cisco Products and/or
services; and (ii) it will notify Cisco in writing if any of its owners,
partners, principals, officers, and employees are or become during the term of
this Agreement officials, officers or representatives of any government or
political party or candidates for political office. Customer shall use
reasonable efforts to regularly and continuously inform Cisco of any
requirements of laws, statutes, ordinances, governmental authorities directly
or indirectly affecting this Agreement, the sale, use and distribution of
Products or Cisco's trade name, trademarks or other commercial, industrial or
intellectual property interests, including, but not limited to, certification
of the Products from the proper authorities in the Territory.
20. Limitation of Liability.
NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF CISCO AND ITS SUPPLIERS
UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE MONEY PAID TO CISCO
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UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT OR
CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS
CUMULATIVE AND NOT PER INCIDENT.
21. Consequential Damages Waiver.
EXCEPT FOR CUSTOMER'S BREACH OF SECTION 9, PROPRIETARY RIGHTS AND SOFTWARE
LICENSING OR SECTION 17, EXPORT, RE-EXPORT, AND TRANSFER CONTROLS, OR EITHER
PARTY'S BREACH OF SECTION 12, CONFIDENTIAL INFORMATION, IN NO EVENT SHALL
EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, OR ANY OTHER INDIRECT
DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR
OTHERWISE, EVEN IF SUCH PARTY OR ITS SUPPLIERS HAVE BEEN INFORMED OF THE
POSSIBILITY THEREOF.
22. Notices.
All notices required or permitted under this Agreement will be in writing and
will be deemed given: (a) when delivered personally; (b) when sent by
confirmed facsimile (followed by the actual document in air mail/air courier);
(c) three (3) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid (or six (6) days for international
mail); or (d) one (1) day after deposit with a commercial express courier
specifying next day delivery (or two (2) days for international courier
packages specifying 2-day delivery), with written verification of receipt.
All communications will be sent to the addresses set forth on the cover sheet
of this Agreement or such other address as may be designated by a party by
giving written notice to the other party pursuant to this paragraph.
23. General.
23.1 CHOICE OF LAW. The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the State of
California, United States of America, as if performed wholly within the state
and without giving effect to the principles of conflict of law. The parties
specifically disclaim the UN Convention on Contracts for the International
Sale of Goods.
23.2 NO WAIVER. No waiver of rights under this Agreement by either party
shall constitute a subsequent waiver of this or any other right under this
Agreement.
23.3 ASSIGNMENT. Neither this Agreement nor any rights under this
Agreement, other than monies due or to become due, shall be assigned or
otherwise transferred by Customer (by operation of law or otherwise) without
the prior written consent of Cisco. Cisco shall have the right to assign all
or part of this Agreement without Customer's approval. This Agreement shall
bind and inure to the benefit of the successors and permitted assigns of the
parties.
23.4 SEVERABILITY. In the event that any of the terms of this Agreement
become or are declared to be illegal or otherwise unenforceable by any court
of competent jurisdiction, such term(s) shall be null and void and shall be
deemed deleted from this Agreement. All remaining terms of this Agreement
shall remain in full force and effect. Notwithstanding the foregoing, if this
paragraph becomes applicable and, as a result, the value of this Agreement is
materially impaired for either party, as determined by such Party in its sole
discretion, then the affected party may terminate this Agreement by written
notice to the other.
23.5 ATTORNEYS FEES. In any suit or proceeding relating to this Agreement,
the prevailing party will have the right to recover from the other its costs
and reasonable fees and expenses of attorneys, accountants, and other
professionals incurred in connection with the suit of proceeding, including
costs, fees and expenses upon
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appeal, separately from and in addition to any other amount included in such
judgement. This provision is intended to be severable from the other
provisions of this Agreement, and shall survive and not be merged into any
such judgement.
23.6 NO AGENCY. This Agreement does not create any agency, partnership,
joint venture, or franchise relationship. Neither party has the right or
authority to, and shall not, assume or create any obligation of any nature
whatsoever on behalf of the other party or bind the other party in any respect
whatsoever.
23.7 SURVIVAL. Sections 8.3, 10, 12, 14, 15, 16, 17, 18, 20, 21, and 23,
and the license to use the Software set out in Section 9 and Part (i) of
Attachment III (subject to the termination provisions set forth in Part (i) of
Attachment III) shall survive termination of this Agreement.
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