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EXHIBIT 10.9
Cisco Systems, Inc. Agreement No.: _________
CONFIDENTIAL
New York Mercantile
Exchange
Cisco Systems Inc. SMARTnet Agreement
This SMARTnet Agreement ("Agreement") is made and entered into this 21 day of
5, 1996 ("Effective Date"), between Cisco Systems, Inc., a California
Corporation, with offices at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000
("Cisco") and New York Mercantile Exchange, a New York corporation, with offices
at 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Customer").
All notices intended for the parties shall be effective if sent to their
respective addresses above; if to Cisco, attention Customer Service Manager, if
to Customer, attention: General Counsel, Chief Information Officer ("Notice").
Cisco agrees to furnish, either directly or through a Cisco-approved service
provider ("Cisco Partner"), support services on Product listed in the attached
Equipment Schedule upon issuance of a Customer Purchase Order.
IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto
have caused this Agreement to be duly executed.
CISCO SYSTEMS, INC. NYMEX (New York Mercantile Exchange)
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
-------------------------------- ---------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
------------------------------ -------------------------------
Title: Vice President Worldwide Title: Sr. Vice President
Sales Finance
----------------------------- ------------------------------
Date: 10/4/96 Date: 9/30/96
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GENERAL TERMS AND CONDITIONS
I. DEFINITIONS.
A. "Advance Replacement" means a Cisco process to ship
replacement product in advance of failed/defective product
receipt.
B. "Equipment Schedule" means the list of Customer Product
attached hereto as Attachment A.
C. "Hardware" means tangible Cisco product delivered to Customer.
D. "Maintenance Release" means an incremental release of Cisco
software that provides maintenance fixes and may provide
additional software features. Maintenance releases are
designated by Cisco as a change in the digit(s) to the right
of the tenths digit of the software product version number
[x.x.(x)].
E. "Product" means both Hardware and Software.
F. "Product Release" means a release of a Cisco software product
that is designated by Cisco as a change in the ones digit of
the product version number [(x).x.x].
G. "Software Update Service" means that service requested by
Customer for shipment of software Version Release and
Maintenance Releases.
H. "Software" means software programs licensed to Customer by
Cisco.
I. "Version Release" means an incremental release of Cisco
software that provides maintenance fixes and additional
software features. Version releases are designated by Cisco as
a change in the tenths digit(s) of the software product
version number [x.(x.).x].
J. "Releases" shall mean the Maintenance Releases, the Product
Releases and the Version Releases.
K. "Volume Purchase Agreement" shall mean the Volume Purchase
Agreement, dated as of even date herewith, by and between
Customer and Cisco.
II. TERM. This Agreement will commence, with respect to the Pilot Phase
Products (as defined in the Volume Purchase Agreement), on October 1,
1996 and, with respect to the O.N.E. Phase Products (as defined in the
Volume Purchase Agreement), on January 1, 1997 (unless Customer places
any such Products into live service earlier, in accordance the Volume
Purchase Agreement) and will continue in full force and effect until 15
months from such respective dates unless earlier terminated pursuant to
the terms and conditions contained herein. Maintenance services under
this Agreement shall be provided by Cisco to Customer free of charge
for the first three months of each such 15 month period. Cisco will
provide notice to Customer ninety (90) days prior to the end of the
then-current term indicating whether Cisco intends to renew this
Agreement. In the event Cisco desires to renew this Agreement, Customer
will respond to Cisco's notice within thirty (30) days of Customer's
receipt of such notice indicating whether Customer desires to renew
this Agreement. In the event either party hereto decides not to renew
this Agreement, this Agreement will terminate at the end of the
then-current term, unless earlier
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terminated pursuant to the terms and conditions contained herein. Any
termination of this Agreement shall be entirely without liability to
either party except as set forth below.
III. SERVICE RESPONSIBILITIES OF CISCO. In consideration of the maintenance
charges paid to Cisco by Customer hereunder, Cisco shall provide the
following support services in accordance with the provisions of this
Agreement.
A. Cisco Support Services:
1. Cisco will assist Customer, by telephone or
electronic mail with information related to equipment
system use and configuration and with
troubleshooting. Further, Cisco will provide Customer
with the Software Update Service described in Section
III(A)(4) below. Cisco will use commercially
reasonable efforts to generate work-around solutions
to reported Software problems or will implement a
Cisco-installed patch to the Software, at its
discretion. For a software patch, Cisco will ship new
firmware (Maintenance Release) to the Customer for
the Product experiencing the problem, or provide a
network-bootable software image, as Customer and
Cisco agree. Customer will provide Cisco with a
priority level for all calls placed with Cisco in
accordance with the Problem Prioritization and
Escalation Guide set forth in Appendix B attached
hereto and made a part hereof and Cisco will provide
all support services hereunder in accordance with
such Guide.
2. 24-hour 7-day a week Priority 1 and 2 telephone
support to Customer as defined in APPENDIX B. North
American telephone support outside of Cisco business
hours includes one (1) hour callback for technical
assistance. Outside of North America, the Cisco
Partner will provide all telephone support to
Customer during normal business hours; however,
outside of normal business hours priority one and
priority two telephone support requests will be
handled directly by Cisco. Cisco will use best
efforts to provide general information, configuration
assistance or installation assistance outside of
normal business hours. Response times for Priority 3
and Priority 4 telephone support to Customer as
defined in APPENDIX B outside of normal business
hours shall be no later than the next business day.
3. During the term of this Agreement, Cisco shall
support the release(s) of the Software that is in use
by Customer at the time of such support, provided
such release(s) is not more than one (1) Product
Release prior to the then-current Product Release
which is available from Cisco. In the event the
release(s) that is in use by Customer at the time of
Cisco's provision of support hereunder is more than
one (1) Product Release prior to the then-current
Product Release which is available from Cisco, Cisco
may require Customer to upgrade to a more current
Product Release if such upgrade is necessary for
Cisco to meet its support obligations hereunder.
4. Cisco shall provide Customer with unencumbered access
to any and all new Releases or work-arounds via the
Cisco Connection.
5. Cisco will bear the cost for shipment to Customer of
all remedial materials and any and all other
materials shipped by Cisco to Customer in connection
with
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Cisco's support obligations hereunder. Shipments are
made via express transportation. Request for
alternative carriers will be at Customer's expense.
6. Cisco will provide to Customer access to the Cisco
Connection. This system provides the Customer with
technical and general information on Cisco products,
and access to Cisco's on-line software library.
7. Cisco shall provide, at no charge, one paper copy of
documentation for each Product Release; Cisco shall
also provide, at no charge, electronic access to
documentation on CD ROM, and if available, via Cisco
Connection. Additional paper copies of documentation
may be purchased from Cisco.
8. Cisco will use commercially reasonable efforts to
maintain an adequate supply of spare parts and
equipment necessary to meet its service obligations
hereunder.
B. Advance Replacement Services.
1. Customers will report failed Hardware to Cisco's
Technical Assistance Center (TAC). In North America,
the TAC is maintained by Cisco. Outside of North
America, the TAC is maintained by the Cisco Partner.
If failed Hardware is reported to the TAC before 3:00
p.m., Pacific Standard Time Monday through Friday
(excluding scheduled local holidays), the appropriate
TAC will ship a replacement part to arrive the next
business day. For calls after 3:00 p.m., Pacific
Standard Time, the replacement part will be shipped
the following business day, provided, however, that
Customer may report failed Hardware related to a
Priority 1 or Priority 2 problem at any time to the
TAC and the appropriate TAC shall use its
commercially reasonable efforts to ship a replacement
part to Customer as soon as possible.
2. Cisco will supply all necessary advance replacement
Hardware for Customer. Replacement parts will be
either now or equivalent to new at Cisco's
discretion. All replacement parts will be shipped by
Cisco at Cisco's expense, and such expense will
include insurance against risk of loss until received
by Customer at such destination designated by
Customer in writing.
IV. SERVICE RESPONSIBILITIES OF CUSTOMER.
A. Customer will provide Cisco with a priority level for all
calls placed with Cisco (see APPENDIX B.).
B. Customer is responsible for testing all replacement Product to
verify any damage in transit. Failures and/or mis-shipments
must be reported to Cisco within two (2) business days of
receipt. For purposes of this Agreement, "business day" shall
mean any day which is not a Saturday, Sunday or a day on which
Customer is closed for business.
C. Customer shall provide full and unrestricted access to the
Product via Telnet through the Internet or via modem such that
problems may be diagnosed and corrected remotely.
D. Customer is required to notify Cisco of Customer's acceptance
of updated firmware not more than ten (10) business days after
Customer's receipt of such firmware.
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E. Deleted.
F. Customer agrees to stay reasonably current with Product
Releases so as to be at least within one release of the latest
Product Release.
G. All reasonable travel expense, if Cisco is requested to
perform on-site service. Engineering time will be billed at
the then-current applicable "Time and Materials" rates. The
"Time and Materials" rates in effect on the date hereof are
set forth in Appendix A attached hereto and made a part
hereof.
H. Return of Hardware to Cisco. For Hardware returned to Cisco,
Customer is responsible for:
1. Proper packing of parts being shipped to Cisco,
Including description of failure and written
specification of any other changes or alteration of
the Product, such as Hardware or firmware updates.
2. Insurance of all packages sent to Cisco. Parts should
be insured for replacement cost, and shipped FOB
Cisco's Repair Center.
3. Defective Hardware must be returned to Cisco within
10 business days of Customer's receipt from Cisco of
the replacement Hardware; otherwise, the list price
of the Hardware will be charged.
4. Complying with Cisco's RMA procedure for all
shipments to Cisco, as follows:
a. Each request to Cisco for an RMA number must
specify the number, type, and serial number
for each part to be replaced.
b. Product sent back to Cisco must agree
exactly in the number, type, and serial
numbers associated with the RMA transaction.
c. Return of parts is handled as follows:
If shipped by Cisco: If shipped by the
Cisco Systems, Inc. Cisco Partner, the
c/o Sequel parts are returned
2300 Central Expressway to the Cisco Partner.
Building 10 South Dock 3-6
Attn.: XXX Xxxx.
Xxxxx Xxxxx, XX 00000
V. SERVICES NOT COVERED UNDER THIS AGREEMENT.
A. Any customization of Software.
B. Any labor to install firmware.
C. Any reasonable expenses incurred to visit Customer's location,
except as required during escalation of problems by Cisco.
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D. Support or replacement of Product that is altered, modified,
mishandled. destroyed or damaged by natural causes or damaged
due to a negligent or willful act or omission by Customer or
use by Customer other than as specified in the applicable
Cisco-supplied documentation.
E. Services to resolve software or hardware problems resulting
from third party products or causes beyond Cisco's control.
F. Services for non-Cisco software installed on any Cisco
equipment.
G. Any Hardware upgrade required to run new or updated Software.
In the event a Hardware upgrade is necessary; Cisco will
provide Customer with as much advance notice as possible.
VI. EQUIPMENT SCHEDULE AND CHARGE.
A. Product covered under this Agreement is listed in ATTACHMENT A
which may be revised to add, delete or upgrade Product by
Customer's purchase order requesting such revisions and
Cisco's acceptance thereof.
B. Fees are specified in APPENDICES C-1, C-2, and C-3, and may be
changed upon ninety (90) days Notice. Fees for out-of-scope
services are specified in Attachment B, and may be changed by
Cisco upon ninety (90) days written notice to Customer on an
annual basis; provided, however, that the percentage of any
price increase shall not exceed the Consumer All-Urban Price
Index inflation rate as published by the U.S. Government for
the calendar year immediately preceding the calendar year in
which such price increase will be effective. In the event of
any price increase whatsoever, Customer may terminate this
Agreement, or the provision of services for the particular
Products for which the service price has increased, upon
thirty (30) days' prior written notice to Cisco. All prices
are exclusive of any taxes and duties which, if applicable,
shall be paid by Customer unless Customer has provided to
Cisco an exemption certificate. Applicable taxes are billed as
a separate item.
C. Cisco acknowledges and agrees that:
1. Battery Park City Authority ("BPCA") is making
available to Customer certain sales and use tax
benefits in connection with Cisco's provision of the
Services to Customer hereunder (the "Work") and, more
specifically, that materials purchased in connection
with the Work, and equipment and items of personal
property purchased for incorporation into and as part
of the Work, are exempt from sales and use tax
provided that:
(i) such materials, equipment or items of
personal property have a useful life of one
(1) year or more, and are not consumables;
and
(ii) such materials, equipment or items of
personal property are installed and used in
that certain building to be constructed and
improved by or on behalf of Customer on Site
15 in Xxxxxxx Xxxx Xxxx, Xxx Xxxx, Xxx Xxxx
(the "NYMEX Building"), 00 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx and Four Word Trade Center,
New York, New York.
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Cisco further acknowledges and agrees that, in order
for Customer to enjoy the sales tax exemption, all
materials, equipment and items of personal property
must be purchased by Cisco, in each case as agent (or
sub-agent) for BPCA. The agency, and the resulting
sales tax exemption, are evidenced in a Sales Tax
Letter heretofore delivered by BPCA to Customer, and
attached to the Volume Purchase Agreement as Exhibit
E. Cisco understands that the exemption described
herein is an exemption from the sales or use tax that
is payable in connection with the acquisition of
certain materials to be installed in the NYMEX
Building -- and that labor (including installation
labor) and services, and the resale of items
originally subject to tax, are and shall remain
exempt from sales tax;
2. This Agreement relates to (i) the purchase or lease
of materials and fixtures for installation in, and/or
the construction of and any repairs and renovations
made to, the NYMEX Building, (ii) the purchase or
lease of equipment, machinery furniture and
furnishings for use by Customer and its members and
affiliates in the NYMEX Building and in certain
facilities of Customer located at 00 Xxxxxxxxx Xxxxxx
and at 4 World Trade Center, New York, New York, and
(iii) the maintenance or repair of any of the
foregoing (the foregoing, collectively, the "NYMEX
Project"). The sales tax exemption provided with
respect to this Agreement shall only be available for
the NYMEX Project;
3. In no event shall BPCA have any liability (directly,
indirectly or otherwise) or performance obligation
under this Agreement;
4. This Agreement is being delivered by Customer on the
understanding that no amount of sales or use taxes is
included in the contract price and that all charges
under this Agreement shall exclude all taxes, duties
or charges of any kind (including, without
limitation, withholding or value added taxes) imposed
by any federal, state or local governmental entity
for products or services provided under this
Agreement. Cisco's authorized representative shall
promptly provide Customer with a certificate in the
form of Exhibit G attached to the Volume Purchase
Agreement, which shall identify with specificity and
certify the sales tax for any products or services
provided under this Agreement. Notwithstanding the
foregoing, all products and services provided
hereunder are exempt from sales tax, as evidenced by
the Sales Tax Letter attached to the Volume Purchase
Exhibit as Exhibit E; and
5. Cisco shall not acquire any equipment, materials or
services from any third party vendors in fulfilling
its obligations hereunder. Cisco will perform all of
the services described herein itself.
VII. PAYMENT TERMS. All Services are invoiced annually in advance, in U.S.
Dollars. Cisco shall use commercially reasonable efforts to submit
invoices between the first and fifth of the month for any equipment
received by Customer during the previous month. Upon credit approval by
Cisco, payment terms shall be net thirty (30) days from Customer's
receipt of an undisputed invoice from Cisco (the "Payment Period");
provided, however, that if an undisputed invoice is received between
the fifth and 15th day of such month, the Payment Period shall be 60
days and if an undisputed invoice is received between the 16th and last
day of such month, the Payment Period shall be 45 days. Any sum not
paid by Customer when due shall bear interest at the maximum rate
permitted by law until paid. Notwithstanding the foregoing, Customer
shall not be obligated to pay interest to Cisco on an overdue balance
unless Cisco provides Customer with
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prior written notice of such overdue balance (via mail or facsimile, in
accordance with section XIV(D) below), and Customer has not made
payment to Cisco for such overdue balance within five business days
after Customer's receipt of such notice.
VIII. REPRESENTATIONS AND WARRANTIES
Cisco represents, warrants and covenants to Customer that:
A. It is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation
and has all requisite power and authority to enter into and
perform its obligations under this Agreement;
B. This Agreement when executed will become the legal, valid and
binding obligation of it enforceable against it in accordance
with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws
relating to the rights of creditors generally;
C. There are no material actions, suits, proceedings or
investigations commenced nor, to the best of its knowledge and
belief, contemplated or threatened against Cisco or its third
party licensors, if any, which could in any way affect the
Product, Advance Replacements, Releases or Cisco's provision
of its services hereunder nor, to the best of its knowledge
and belief, are there any existing facts or conditions which
may reasonably be expected to be a proper basis for any such
actions, suits, proceedings or investigations;
D. Neither the Software nor any Releases does or will contain any
codes, programs or commands intentionally written that will
cause a Customer's system to malfunction or self-destruct in
any manner. Cisco has or will use an anti-virus program on any
magnetic media in which any software is loaded and imbedded as
part of the Products delivered to Customer under this
Agreement or the Volume Purchase Agreement, before the
delivery of any such Products to Customer. Cisco shall
promptly provide to the Customer, at Customer's request and at
no additional cost to Customer, the means by which Customer
can check that there are no viruses in and that there has been
no tampering with such Products;
E. The Software and the Releases do not and will not infringe
upon any United States copyrights or patents, misappropriate
any trade secrets or infringe any servicemark, trademark or
any other proprietary or intellectual property rights of any
other person, firm or corporation. Cisco's sole and exclusive
obligation and Customer's sole remedy with respect to this
warranty and to the Software and Releases's infringement upon
any United States copyrights or patents, misappropriation of
any trade secrets or infringement upon any servicemark,
trademark or any other proprietary or intellectual property
rights of any other person, firm or corporation is termination
of this Agreement and those remedies stated in Section XII
(Intellectual Property Indemnity) herein;
F. While providing services to Customer hereunder, Cisco will
comply with (i) the requirements of the State Urban
Development Corp., the New York City Economic Development
Corp. and the Battery Park City Authority, as set forth in
Exhibits A, D and F to the Volume Purchase Agreement; (ii)
placarded standards for safety, emissions and network
compliance purposes and; (iii) all applicable laws,
regulations and rules to the extent necessary to ensure that
noncompliance with such laws, regulations and rules would not
reasonably be expected, individually or in the aggregate, to
have any
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materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of
Customer, its members and its affiliates taken as a whole or
on the ability of Customer to perform its obligations under
this Agreement; provided, however, that in the event Customer
determines that Cisco is not in compliance with such
aforementioned laws, regulations and rules, Customer shall
provide Cisco with a written notification which states the
exact nature of noncompliance. Cisco shall have thirty (30)
days from the earlier of (i) the date that Cisco became aware
of the noncompliance and (ii) receipt of the notification to
cure the non-compliance. Such cure period may be extended on a
day-to-day basis upon mutual consent.
G. Cisco has filed a Vendex Form, substantially in the form of
Exhibit B to the Volume Purchase Agreement and made a part
thereof, with the Economic Development Corporation and if such
application is denied, Cisco will forfeit all of its rights to
payment under this Agreement and will remain liable to Buyer
for all damages suffered by Buyer by reason of such denial;
H. While providing services to Customer hereunder, Cisco shall
procure and maintain for itself and its agents and employees
all insurance coverages as required by applicable law,
including without limitation, such insurance as is set forth
in Exhibit C to the Volume Purchase Agreement, each with an
insurer reasonably acceptable to Customer and naming Customer
as an additional insured. The certificates of insurance will
include a provision pursuant to which 30 days' notice must be
afforded Customer prior to the cancellation by either Cisco or
its insurer. Cisco will promptly replace any cancelled policy
with a substantially similar policy from an insurer with an
A.M. Best Reports rating which is at least A-VIII that is
licensed to do business in the State of New York and will
provide evidence of the same to Customer. If Cisco desires to
satisfy its insurance obligations under this Agreement through
self-insurance, it will first contact Customer and the terms
and conditions of such self-insurance shall be subject to
approval in writing of Customer and the Public Parties (as
defined in Exhibit A hereto), which approval will not be
unreasonably withheld;
I. The account team which will provide coverage and support to
Customer hereunder will consist of highly skilled and
experienced personnel. The members of the account team that
will be supporting Customer as of the date hereof are set
forth in Exhibit I to the Volume Purchase Agreement. In the
event Cisco desires to replace any such member, such
replacement shall possess a reasonable level of skill and
experience as the member being replaced and shall be subject
to the prior approval of Customer; and
J. Cisco will provide the services hereunder in a good and
workmanlike manner.
IX. REMEDIES AND LIMITATION OF DAMAGES.
A. This Agreement may be terminated immediately by Customer upon
Notice of Cisco's uncured material breach which persists for
greater than thirty (30) days; provided that Notice includes a
detailed description of the breach.
B. This Agreement may be terminated by Cisco and/or Cisco may
suspend its performance immediately upon Notice if: (a)
Customer fails to pay for the Services when due and fails to
make such payment within fifteen (15) business days after
Notice from Cisco of such past due payment; or (b) there
exists an uncured material breach by Customer which
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persists for greater than thirty (30) business days, following
Notice; provided that Notice includes a detailed description
of the breach.
C. Subject to Section XIV(K) below, in the event this Agreement
is terminated by either party, neither party shall have any
further obligations to the other party under this Agreement.
Notwithstanding the foregoing, Cisco shall refund the price
paid for Services to be performed after the effective date of
termination, less any amounts then due Cisco. Termination of
this Agreement by Cisco shall not constitute a waiver by Cisco
for any amounts due Cisco.
D. SUBJECT TO SECTION XII(A) AND XIV(I) BELOW, IN NO EVENT SHALL
CISCO OR ITS SUPPLIERS OR CUSTOMER BE LIABLE FOR (A) ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST
DATA, OR ANY OTHER INDIRECT DAMAGES EVEN IF CISCO OR ITS
SUPPLIERS OR CUSTOMER HAS BEEN INFORMED OF THE POSSIBILITY
THEREOF, OR (B) ANY COSTS OR EXPENSES FOR THE PROCUREMENT OF
SUBSTITUTE EQUIPMENT OR SERVICES. NOTWITHSTANDING THE ABOVE,
THIS LIMITATION OF DAMAGES WILL NOT APPLY (1) IN RESPECT OF
ANY BREACH BY CUSTOMER OF THE PROVISIONS OF THE LAST SENTENCE
OF SECTION X OF THIS AGREEMENT IN ANY MATERIAL RESPECT, SOLELY
WITH RESPECT TO SOFTWARE WHICH HAS NOT BEEN PUBLICLY MADE
AVAILABLE WITHOUT RESTRICTION BY CISCO VIA THE INTERNET OR
OTHERWISE OR (2) WITH RESPECT TO ANY ACTS OF FRAUD OR
INTENTIONAL MISCONDUCT BY CUSTOMER OR CISCO.
X. SOFTWARE LICENSE. Customer acknowledges that it may receive Software as
a result of services provided under this Agreement. Customer agrees
that it is licensed to use such Software only on Hardware covered under
this Agreement and subject to the terms and conditions of the software
license set forth with the original Product. Customer shall not: copy,
in whole or in part, Software or documentation provided, however, that
Customer may make one copy of the Software and any Releases provided
hereunder for back-up and archival purposes only; modify the Software,
reverse compile or reverse assemble all or any portion of the Software;
or rent, lease, distribute, sell, or create derivative works of the
Software.
XI. CONFIDENTIAL INFORMATION. Each party hereto shall hold information of
any nature which is obtained by such party from the other party,
including, without limitation, the terms and conditions of this
Agreement, in strict confidence and shall not use or disclose, or
permit others to use or disclose, such confidential information except
in connection with the performance of its obligations to the disclosing
party hereunder. The obligations of confidentiality shall not apply to
information which (i) has entered the public domain except where such
entry is the result of the receiving party's breach of this Agreement;
(ii) prior to disclosure hereunder was already in the receiving party's
possession; (iii) subsequent to disclosure hereunder is obtained by the
receiving party on a confidential basis from a third party who has the
right to disclose such information to the receiving party; (iv) is
developed by or for the receiving party without access to the
confidential information and such independent development can be shown
by documentary evidence; (v) is ordered to be disclosed by a court,
administrative agency, or other governmental body with jurisdiction
over the parties hereto, provided that the ordered party will first
have provided the disclosing party with prompt written notice of such
required disclosure and will take reasonable steps to allow the
disclosing party to seek a protective order with respect to the
confidentiality of the information required to be disclosed. The
ordered party will promptly cooperate with and assist the disclosing
party, at the disclosing party's expense, in connection
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with obtaining such protective order; or (vi) relates solely to the
design of the NYMEX local area network. The obligations of the
receiving party concerning confidentiality shall terminate five (5)
years following receipt of the confidential information.
XII. INTELLECTUAL PROPERTY INDEMNITY.
A. Cisco hereby indemnifies and holds Customer, its affiliates
and members, and their respective officers directors and
employees harmless from and against any and all penalties,
damages, costs, judgments, settlements, attorneys' fees and
disbursements actually paid in connection with claims by any
third person (1) that the Product or Release, any component
thereof or any services provided by Cisco under this Agreement
infringes a copyright, trademark, servicemark or any other
proprietary right of any third party or any United States
patent (for patents existing as of the date of the "first
customer shipment" (as defined below) of any Product or
Release), (2) that there has been a misappropriation of a
trade secret by Cisco, (3) arising from or relating to any
breach by Cisco of any representation or warranty contained in
Section VIII(E) above, or (4) in connection with or arising
out of any death, personal injury or damage to tangible
property to the extent caused by Cisco's employees' negligence
or willful misconduct relating to or arising from any services
performed pursuant to this Agreement. As a condition of this
indemnity, Customer will provide Cisco with prompt notice of
any claim and Cisco will control the defense and settlement of
such claims; provided, however, that Cisco will not settle any
claim, other than for monetary damages only, without
Customer's prior written consent which consent will not be
unreasonably withheld. Cisco will permit Customer to
participate in any such defense at Customer's expense to the
extent such participation is reasonable. Promptly upon Cisco's
request, Customer will provide all reasonable assistance in
the defense of such claims. If a temporary restraining order,
preliminary injunction or a final injunction is sought or
obtained against the use of the Product or Release or any
component thereof due to an infringement of a patent,
copyright, trademark or other proprietary right, or if the
Product or Release or any component thereof constitutes a
misappropriation of a trade secret or other proprietary right,
Cisco will, at its option and sole expense, either (a) procure
for Customer the right to continue using the Product or
Release or such component thereof or (b) replace or modify the
Product or Release or such component thereof so that the
Product or Release and all components thereof no longer
infringe such patent, copyright or trademark or constitute a
misappropriation of a trade secret; provided, however, that
such replaced or modified product or component thereof will
substantially conform to published specifications; or (c) if
Cisco is unable to perform (1) or (2) above within a
commercially reasonable time period, Cisco will refund to
Customer the monies paid for the affected Product or Release
or service as of the effective date of such termination, which
fees shall be depreciated on a five-year straight line
depreciation basis. For the purposes of this Section XII(A)
"first customer shipment" shall mean the date of first
shipment by Cisco to any commercial customer of any Product or
Release.
B. Cisco has no liability for any claim to the extent such claim
is based upon the combination, operation or use of any Product
supplied hereunder with equipment, devices or software not
supplied by Cisco; provided, however, that such combination,
operation or use is performed without Cisco's consent.
Further, Cisco has no liability for any claim to the extent
such claim is based upon the alteration or modification of any
Product supplied hereunder without Cisco's consent.
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C. Notwithstanding any other provisions hereof, Cisco shall not
be liable for any claim based on Customer's use of the Product
as shipped after Cisco has informed the Customer of
modifications or changes in the Product 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; provided, however, that
Customer did not provide Cisco with a reasonable opportunity
to implement Cisco's suggestions.
D. THE FOREGOING STATES THE ENTIRE OBLIGATION OF CISCO WITH
RESPECT TO INFRINGEMENT. THE FOREGOING IS GIVEN TO CUSTOMERS
SOLELY FOR THEIR BENEFIT. SUBJECT TO THE EXPRESS WARRANTIES
CONTAINED HEREIN, THE FOREGOING ALSO IS IN LIEU OF, AND CISCO
DISCLAIMS, ALL WARRANTIES OF NONINFRINGEMENT WITH RESPECT TO
THE PRODUCT.
XIII. LIMITATION OF LIABILITY. SUBJECT TO SECTIONS XII(A) AND IX(D) ABOVE AND
XIV(I) BELOW AND NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF
CISCO AND ITS SUPPLIERS AND CUSTOMER UNDER THIS AGREEMENT OR OTHERWISE
SHALL BE LIMITED TO MONEY PAID TO CISCO UNDER THIS AGREEMENT DURING THE
TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING
RISE TO SUCH LIABILITY, OR FIFTY THOUSAND DOLLARS ($50,000), WHICHEVER
IS GREATER. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, CISCO AGREES THAT RECOURSE BY CISCO FOR SATISFACTION OF
CLAIMS OF ANY NATURE AGAINST CUSTOMER, ITS MEMBERS, ITS AFFILIATES, OR
ANY OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS OR EMPLOYEES
ARISING IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT SHALL BE
LIMITED SOLELY TO RECOURSE AGAINST CUSTOMER.
XIV. GENERAL.
A. Force Majeure. Neither party hereto shall be liable for any
delay or failure in performance whatsoever due to any
occurrence which is beyond such party's reasonable control and
without its fault or negligence, including but not limited to,
Acts of God, earthquakes, shortages of supplies,
transportation difficulties, labor disputes, riots, war, fire,
epidemics, and similar occurrences; provided, however, that
any such force majeure event shall not excuse Buyer from its
obligation to pay to Cisco any money due and owing pursuant to
this Agreement prior to such force majeure event.
B. Choice of Law. This Agreement shall be interpreted and
construed and legal relations created shall be determined in
accordance with the laws of the State of California, without
regard to any conflict of law principles.
C. Amendments. Any changes or amendments to this Agreement may
only be effected by a written instrument signed by the parties
hereto.
D. Notices. Notices given by a party under this Agreement must be
in writing and must be either delivered in person; U.S.
mailed, first class, postage prepaid; air courier; or sent via
facsimile to the other party at the address set forth on the
signature page of this Agreement, and are deemed received
three (3) days after posting.
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E. 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.
F. Assignment. Neither party shall assign or otherwise transfer
this Agreement nor any rights under this Agreement without the
prior written consent of the other. Notwithstanding the
foregoing, this Agreement may be transferred or otherwise
assigned to any company or other entity which acquires all or
substantially all of the assets of such party. This Agreement
shall bind and inure to the benefit of the successors and
permitted assigns of the parties.
G. Export Restrictions. Customer shall obtain all licenses,
permits and approvals required by any government and shall
comply with all applicable laws, rules, policies and
procedures of the U.S. Government. Customer will indemnify and
hold harmless Cisco for any violation or alleged violation by
Customer of such laws, rules, policies and procedures.
Customer will control the defense and settlement of such
claims in accordance with Section XIV(I) below. Customer shall
not transmit, directly or indirectly, the Products or any
technical data (including processes and services) received
from Cisco, nor the direct product thereof, outside of the
United States without prior authorization of the U. S.
Government where such authorization is required.
H. Severability. In the event any of the terms of this Agreement
become or are declared illegal by any court of competent
jurisdiction, such term(s) shall be null and void and shall be
replaced by a mutually acceptable provision of like economic
intent and effect. 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 substantially impaired
for either party, then the affected party may terminate this
Agreement by Notice to the other.
I. Personal Injury; Tangible Personal Property Indemnification.
Each party shall defend any proceedings or actions brought by
a third party against the other party to the extent based on a
claim that the negligence of the indemnifying party's
employees or agents directly caused bodily injury or damage to
tangible personal property. The indemnifying party agrees to
indemnify the indemnified party for direct damages including
court costs and reasonable attorneys' fees) awarded to third
parties as a result of such claims. The indemnifying party's
obligation to defend and indemnify hereunder is subject to the
indemnifying party being notified promptly in writing of the
third party proceeding. The indemnifying party will control
the defense and settlement of such claims; provided, however,
that the indemnifying party will not settle any claim, other
than for monetary damages only, without the other party's
prior written consent, which consent will not be unreasonably
Withheld. The indemnifying party will permit the other party
to participate in any such defense at such other party's
expense to the extent such participation is reasonable.
Promptly upon the indemnifying party's request, the other
party will provide all reasonable assistance in the defense of
such claims at the indemnifying party's expense.
J. Service Agreement. This Agreement constitutes a service
agreement and not a product warranty. Except for the express
warranties made hereunder with respect to the Product and the
Releases provided hereunder, Cisco makes no warranty to
Customer, either express or implied, with respect to any
products purchased by customer, except for the Cisco standard
limited warranty as set forth in the information which
accompanies the equipment. CISCO SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF
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MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR
ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
K. Survival. Sections VIII, IX(D), X, XI, XII and XIII and XIV
shall survive termination of this Agreement.
L. Nothing in this Agreement will be construed to constitute or
appoint either party hereto as the agent, partner, joint
venturer, representative, employer or employee of the other
party for any purpose whatsoever, or to grant to either party
any right or authority to assume or create any obligation or
responsibility, express or implied, for or on behalf of or in
the name of the other, or to bind the other in any way or
manner whatsoever.
M. This Agreement together with all appendices, exhibits,
schedules, attachments and addenda attached hereto or thereto
contains the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes any prior
agreement understanding, proposal or communication, oral or
written, between the parties with respect to such subject
matter and will not be varied, amended, or supplemented except
in a writing signed by both of the parties hereto. In the
event of a conflict between the terms and conditions of this
Agreement and the requirements of the State Urban Development
Corp., the New York City Economic Development Corp. and the
Battery Park City Authority, as set forth in Exhibits A, D and
F to the Volume Purchase Agreement, such requirements shall
control. Exhibits A through G and Exhibit I of the Volume
Purchase Agreement are hereby incorporated by reference and
made a part hereof.
N. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, and all of which, when
taken together, shall constitute one and the same instrument.
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